Esho (Migration)

[2018] AATA 3112

Esho (Migration) [2018] AATA 3112 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Azad Abram Esho Esho
Miss Olina Azad Abrem Abrem

CASE NUMBER:  1707983

DIBP REFERENCE(S):  BCC2017/339800

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 July 2018 at 11:51 am (VIC time)

DATE OF WRITTEN RECORD:                26 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criteria – Limited knowledge of enrolled course – Able to study similar course in Sweden – Family members in Australia – Use of student visa program to maintain residency status – Decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 6 April 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 12 July 2018 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. MEMBER: Mr Esho, to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations. You applied for a student visa on 25 January 2017. Your application was refused on 6 April 2017 because having considered your circumstances, the delegate was not satisfied you were a genuine temporary entrant, and therefore did not satisfy clause 500.212.

4. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision. 

5. To satisfy clause 500.212, an applicant must be both a genuine student and a genuine temporary entrant. To be a genuine student, you must be engaged in and applying yourself to a meaningful program of study, progressing academically down an identifiable path. To be a genuine temporary entrant, your circumstances must indicate a genuine intention to remain in Australia temporarily.

6. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, decision makers must have regard to what is known as Ministerial Direction No. 69, and the issues in that direction.  They were detailed in your primary decision.  They include your circumstances, the value of your courses to your future, your immigration history, your incentives to stay in Australia or return home, if you are using the student visa program to maintain residence in Australia, and any other relevant matter. 

7. It is not intended as a checklist but it is a guide for decision makers in weighing up an applicant's circumstances on the whole in reaching a finding about whether they satisfy the genuine temporary entrant criteria.

8. The role of the Tribunal is to take a fresh look at your application and to consider whether you are eligible for the grant of a student visa. 

9. You told the Tribunal you have read and understood the primary decision, and we read from it today and discussed it in some detail. 

10. With the invitation, we advised we would assess whether you met the genuine temporary entrant criteria, and we asked you to provide a statement addressing the issues in Direction No. 69.  Your agent provided a statement, a submission that addressed some of those issues, and you answered questions that went to some of them today here.

11. You were asked to provide evidence of past studies and of your current enrolment.  You provided evidence of having completed a ten week English course that you have today told the Tribunal you have completed twice.  You provided evidence of having been enrolled in a Diploma of Business at TMG College.  That course was scheduled to run between 3 July last year and 6 July this year.  You provided a statement of progress dated 19 June 2018 which indicated you had satisfactorily completed five units of that course. 

12. You were unable to tell the Tribunal how many units were involved in that course.  In fact, the answer is that you are required to satisfy eight units to be granted a diploma.  You were unable to name the units that you are yet to study. 

13. Given that you have run your own small business for 20 years, the Tribunal finds the fact that you were not able to complete this diploma of business in the allocated time raises questions about your genuineness as a student. 

14. You provided evidence you are enrolled to study an Advanced Diploma of Leadership and Management, which you stated contained multiple elective units in Event Planning.

15. When asked you have no idea of any units that are in this course.  Having referred to your education provider's website, the Tribunal brings to your attention that there are no units related to event planning. 

16. You further stated you are particularly driven to study business in Australia due to its high emphasis on international trade.  Again, the Tribunal points out there are no units referring to international trade in your proposed studies.

17. You are unaware that this course requires you to pass 12 units and you are unaware of whether or not you will be granted recognition for prior learning for three units in the course you have already completed in the Diploma of Business.  These facts indicate that you have not researched the course you intended to study and leads the Tribunal to find that your motivation is not academic progress but an attempt to maintain residence in Australia.  The Tribunal does not consider your enrolment history or your study history to be the progress of a genuine student.

18. You have provided evidence that having worked as a DJ, you have a business in Wedding Décor and Event Planning in businesses and churches throughout Sweden and other parts of Europe.  You provided a statement from a director of a church in Sweden in which he states he has a joint plan of action in the near future to provide services through you to his congregation. 

19. You today made reference to this, saying you would be a director of a Reception Centre.  You provided some photos of yourself operating as a DJ and of what appear to be wedding decorations.  This is basically the extent of the evidence of your business before the Tribunal.  You have today told the Tribunal that it is basically a one man show and you employ casual employees on an as required basis.

20. You provided an employment certificate for your wife showing that she worked full-time as a teacher's aide between March 2015 and May 2016. 

21. We discussed your travel history to Australia.  You first came to Australia on a tourist visa with your daughter, I am not sure whether there were other members of your family with you  in December 2015, and at that time your father was unwell.

22. INTERPRETER:  And the next, and the second visit, my father was sick.

23. MEMBER:  Right.  You went home on 19 January 2016 and returned a month later on 22 February 2016.

24. INTERPRETER:  That's when my father was sick.

25. MEMBER:  When you stayed for a month until 28 March 2016.  You again returned to Australia on 28 July 2016 with your daughter, Elena.

26. INTERPRETER:  Whole family, the whole family.

27. MEMBER:  The whole family came then?

28. INTERPRETER:  Yes.

29. MEMBER:  Right.  And you stayed until 21 October 2016.  You told the Tribunal you then went over to New Zealand for a few days, and on 27 October 2016 you returned to Australia on a further 601 tourist visa.  You remained here until 27 January 2017.

30. As noted in the primary decision, you arrived in Australia on 28 July 2016 on a tourist visa and on your passenger card, you stated your purpose for visit was for holidays and that you did not intend staying longer than 55 days.  That was when you then went off to New Zealand and came back less than a week later.

31. In a submission from your agent, presumably on your instructions, it states that after residing in Australia for a time, you realised there was still a lot about event planning and managing a business you needed to learn so you decided to study event planning and business and applied for a student visa on 25 January 2017.

32. You had been in and out of Australia on a number of occasions for over a year before you made this decision that you would do some study.  So while you speak about having to organise time away from a business in which you are the key employee, you have now provided evidence of enrolment in a course scheduled to run until March 2019 which will see you away from your business for over three and a half years, an extraordinary absence for the key driver and prime employee of a business.

33. When asked why you do not do your intended studies at home, you said in a previous statement that Australian studies are more prestigious and you wish to understand western event management.  That differs from what you have told me here today, where you say you want to learn skills and talents but to deal with your community in Europe. Your community being the Orthodox Church.

34. The situation is that you say that Swedish university would be insufficient for this purpose, however the Tribunal is aware of studies in exactly what you are looking to study at a number of recognised universities in Sweden, including Lund and Delana Universities, which offer a Bachelor of Tourism and Event Management.

35. You are requesting a visa to stay in Australia until at least March/April 2019, which will bring your total time in Australia on temporary visas to over three and a half years.  You say you have left a thriving business to gain some knowledge to enable you to be able to expand your business, but you do not know what units you are going to study in your upcoming courses and I have already stated the Tribunal believes that being away from such a business for such a period seems an extraordinary decision, and your lack of research into the courses that you wish to study makes me question your genuineness as a student.  While I accept that some education or career pathways require extensive study, I am not satisfied that you have established your future goals fall into that category. 

36. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident, but rather believes you are seeking to use the Australian student visa program to maintain residence in Australia. 

37. While I acknowledge that you have a wife and a 17 or 18 year old son back home in Sweden which may provide some incentive to return, you appear settled in Australia with your daughter and you are here.  Your parents live here, as does your brother.  While you say it's your intention to return home having been here for over two and a half years, you now wish to stay longer.  Your words and your actions seem to be different.

38. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia, and does not believe that you have provided evidence of an incentive to return which outweigh the issues we have discussed or your immigration history.

39. As previously stated, the Tribunal is not satisfied your study history indicates you are a genuine student, and your enrolment in a course that you know nothing about leads the Tribunal to question whether you are a genuine temporary resident. 

40. So having considered your circumstances as a whole including use of Direction No. 69, I am not satisfied you are a genuine student who intends to stay in Australia temporarily.

41. I therefore find you do not satisfy clause 500.212. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

42. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member