ELSAYED (Migration)

[2020] AATA 1045

ELSAYED (Migration) [2020] AATA 1045 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Roshdy Gharib ELSAYED

CASE NUMBER:  1806177

DIBP REFERENCE(S):  BCC2016/884498

MEMBER:Wendy Banfield

DATE:7 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2020 at 6:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training) – Federal Circuit Court remittal – genuine temporary entrant – study history – enrolment in various, unrelated courses, some completed and some cancelled – wife and children in home country – plans for own business in home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 572.223(1)(a)

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 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 3 March 2016. The delegate decided to refuse to grant the visa on 11 May 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because it was determined the applicant did not meet the genuine temporary entrant requirement.

   Background

4. The applicant is a citizen of Egypt and is currently 39 years old. He has a wife and children who continue to reside in his home country. The applicant first came to Australia on 16 October 2006 to study English and business courses. At the time of the Tribunal hearing the applicant had a letter of offer for enrolment in a Diploma and Advanced Diploma of Leadership and Management.

5. The matter is before the Tribunal because of a Federal Circuit Court order, remitting the case to the Tribunal for reconsideration.

6. Prior to the Tribunal hearing on 2 October 2019 the applicant submitted:

   ·     Enrolment agreement letter in the name of the applicant from Mercury College dated 17 September 2019 for a Diploma and Advanced Diploma in Leadership and Management.

7. The Tribunal has also taken account of the evidence submitted at a previous Tribunal hearing (differently constituted) and to the Department in support of the application for a Student visa. This evidence consisted of:

8. Evidence to the Tribunal:

   ·     Application for review form;

   ·     Department’s decision record dated 11 May 2016.

9. Evidence to the Department:

   ·     passport information;

   ·     Confirmation of Enrolment certificates (CoEs) for a Certificate III in Commercial Cookery; Diploma of Hospitality; Diploma of Human Resource Management;

   ·     written response to the Department’s request for information dated 11 April 2016;

   ·     applicant’s Egyptian marriage documents;

   ·     commercial lease documents in the name of the applicant (property in Egypt);

   ·     evidence of the applicant’s communications with Queen Anne College and with the Commonwealth Ombudsman in 2016;

   ·     academic transcript and certification for a Certificate III in Commercial Cookery;

   ·     applicant’s Bachelor of Commerce certificate (Egypt);

   ·     transcript and certificates for a Certificate IV in Frontline Management; Diploma and Advanced Diploma of Business Management and Diploma of Management;

   ·     birth certificates for the applicant’s children (Egypt);

   ·     employment reference from Ezko Property Services dated 26 March 2016;

   ·     financial documents (Egypt).

10. In the written response to the Department’s request for information dated 11 April 2016 the applicant stated he was intending to complete his course of study and return to Egypt to start a business; he had a high number of CoEs because of colleges closing and because he had to return to Egypt several times; at the time he was intending to study Human Resources as part of a business package to be able to deal more competently with customers and Hospitality in order to open a business; he was working 15 to 20 hours a week and will use his Australian qualifications to open a “modern café” on his return to Egypt.

11. The applicant appeared before the Tribunal on 2 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    The hearing

12. The applicant began by referring to the previous Tribunal hearing and said he was not given the opportunity to explain his situation. The Tribunal advised the applicant his case was being heard again from the beginning and he would be able to present his evidence. The applicant advised he first came to Australia in 2006 to study English, followed by business management and business administration. At the time the applicant said he was planning his own restaurant in Egypt.

13. He advised he is now intending to study a Diploma and Advanced Diploma of Leadership and Management. In this regard the applicant submitted a letter of approval from an education provider. He said the courses will show him how to manage his shop and control everything in the business. The Tribunal asked the applicant why he requires formal qualifications to run his own business. He said it was difficult without having the requisite knowledge of the kind he has learnt here in Australia. It was submitted that during his time working here, he has noticed that the solutions to problems are better than his own. The applicant stated he had previously been employed in a restaurant while in Australia and was now working in security.

14. According to the applicant, prior to coming to Australia he held accounting qualifications from his home country. He claimed that holding certificates from Australia would assist him to work around the world. The applicant advised he does not have family in Australia but has his wife, son and daughter in Egypt. The applicant said his parents are living in the United States, as is his brother. He advised that since he first came to Australia, he has returned to Egypt regularly, most recently about 18 months ago. The applicant said he has not applied for any other visas in Australia.

15. The Tribunal noted the applicant’s proposed studies would require him to remain in Australia until 2021. He confirmed that was the case. When asked if he was planning any further study after that the applicant said he did not know. He advised if the situation was good in Egypt he would go there “straight away” after completing his current courses of study. When asked to explain the applicant said words to the effect (through the interpreter) “if I feel like I have taken the main points from my study here then I will go back because my wife and family are there”. He said it was difficult being away from his children as they are still young, but he has been waiting for the outcome of his case.

16. The Tribunal asked the applicant if he understood the Department’s reasons for refusing his application for a Student visa. It was put to him that he has spent a lot of time in Australia as a student and has been enrolled in a variety of courses, some of which are unrelated. The applicant advised that for some of the gaps in study he was overseas in Egypt and referred to not being able to study when his Student visa was refused. The applicant then explained he had difficulty with his previous college who would not provide a certificate unless he paid a fee which led to the applicant having to report the education provider for its conduct.

17. The Tribunal asked the applicant about employment in Australia being an incentive for him to seek to remain in Australia. The applicant said he is just working his 20 hours and when he finishes his studies he will go back to Egypt. The Tribunal asked the applicant why he had enrolled in course in human resources and management that were then cancelled. The applicant claimed it was on the advice of his agent, but he did not take them because he did not feel they would be of benefit. The applicant said he chose to study in Australia because it was a good opportunity and the qualifications are recognised around the world. He reiterated that studying here would give him the knowledge to run his business.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

20. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

21. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

22. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

23. The Tribunal considered the applicant’s circumstances in his home country. At the hearing the applicant confirmed he first arrived in Australia in 2006 to study. He said he has returned to Egypt often since he arrived, including to get married in 2013. The applicant provided evidence regarding his wife and children in Egypt, the latter of who are aged three and four. He advised his parents and a brother live in the United States and he intends to return to Egypt to run a business. At the time of applying for the visa which is the subject of this review the applicant submitted a copy of a commercial lease document for a property in Egypt dated 2 January 2014 that he claimed was to be used for a business premises. Having assessed the evidence, the Tribunal accepts the applicant has personal ties to his home country. However, given the amount of time he has spent in Australia since 2006, the Tribunal is not satisfied those ties provide a strong reason for him to return to Egypt. Although the applicant provided a lease document to the Department as evidence of a future enterprise, there is no evidence a business was established and the lease (that was said to be for 5 years) is no longer current. The Tribunal places minimal weight in the applicant’s favour on the circumstances in his home country.

24. In Australia the applicant has been enrolled in several vocational courses, some of which he completed and some that were cancelled. The applicant advised the Tribunal that the cancellations were due to college closures and his having to travel to Egypt at times. At the time he applied for the visa which is the subject of this review the applicant was planning to take courses in human resources and hospitality. He did not continue with human resources because, according to the evidence at the hearing, the applicant enrolled in the course on the advice of his agent and ultimately did not believe it would be useful. At the time of the Tribunal hearing the applicant was planning to take a Diploma and Advanced Diploma in Leadership and Management. The applicant advised these courses would help him manage his business which would be difficult without having acquired knowledge in Australia. The applicant advised he has been employed in Australia in a restaurant and in security. The Tribunal considers the applicant has extended his stay in Australia beyond what is reasonable by enrolling in a wide range of courses and without progressing beyond Certificate and Diploma level. In addition, the applicant has had ongoing employment in Australia. The Tribunal places weight on the applicant’s circumstances as being an incentive for him to seek to maintain residency.

25. Regarding the value of the courses the applicant is currently studying, the Tribunal accepts a Diploma and Advanced Diploma of Leadership and Management may be of general benefit to an applicant planning a business. However, the applicant has provided very little evidence regarding how he will apply his knowledge and qualifications in future. He advised the department he intends to open a café in future and at the hearing he declared his study and work experience has helped him learn better solutions to problems. However, the applicant’s evidence in this regard has been vague and without detail. The Tribunal places minimal weight on the value of the course the applicant is studying to his future and in particular, future employment in his home country.

26. The applicant’s immigration history refers to both his travel and study history. The Tribunal accepts the applicant has returned to his home country several times since arriving in Australia and that he has completed some courses of study. However, he has had many enrolments cancelled and the Tribunal is not satisfied the applicant has progressed academically as would be expected of a person whose primary focus is education. The Tribunal considers there must come a point when study ceases and an applicant’s stated plans are put into action. In this regard the applicant claimed in 2016 that he wishes to complete his studies and return to Egypt but prior to the Tribunal hearing in 2019 he obtained approval to study Diploma and Advanced Diploma courses up to 2021. Despite the applicant claiming it is difficult to be away from his wife and young children he is nonetheless prepared to remain in Australia and if given the opportunity, will continue to do so.

27. The applicant appears not to have any timeframe for returning to his home country. His evidence at the hearing was that he will depart after studying in Australia if the situation in Egypt is favourable. When asked if he is planning any further study the applicant stated he will return to his wife and family “if I feel like I have taken the main points from my study here”. Having considered the evidence the Tribunal finds the applicant’s immigration history weighs against him in assessing whether he meets the criteria of a genuine temporary entrant for study.

28. The Tribunal considered the applicant’s evidence to the Department regarding difficulties he had with a previous education provider who he claimed would not provide a certificate of completion. The applicant submitted correspondence between himself, the college and the ombudsman about the issue. The Tribunal accepts the applicant had difficulty obtaining documentation in 2016 as he claimed but does not consider it significant in assessing his circumstances at the time of decision in this matter.

29. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

30. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Wendy Banfield
    Member