Farooq (Migration)

[2018] AATA 1894

Farooq (Migration) [2018] AATA 1894 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Omer Farooq
Mrs Rabia Iram
Miss Nawaal Gondal
Miss Mishaal Gondal
Miss Maryam Farooq Gondal

CASE NUMBER:  1617145

DIBP REFERENCE(S):  CLF2013/90183 CLF2016/85359

MEMBER:P. Wood

DATE:7 May 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 7 May 2018 at 8:00pm

CATCHWORD
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – Relevance of courses – VET courses – Economic incentive – Child’s medical treatment – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 572.322

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 April 2013. The delegate decided to refuse to grant the visas on 28 September 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 visas because the first named applicant did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Regulations. Following this, the delegate concluded that the other named visa applicants do not meet 572.322(b).

4. The first named applicant appeared before the Tribunal on 22 March 2018 to give evidence and present arguments. The Tribunal also heard limited evidence from the applicant’s wife, Mrs Rabia Iram, who is one of the secondary applicants.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The primary issue in the present case is whether the first 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)     …

7. 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.

8. 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.

9. The first named applicant arrived in Australia from Pakistan in July 2008 in order to study a Master of Laws degree at the School of Law, Latrobe University in Victoria. He continues to live in Melbourne with his wife and four children on a bridging visa. He had earlier completed undergraduate studies at Punjab University and practised as a lawyer in Pakistan. He told the Tribunal that he was well respected by his peers as a lawyer in Pakistan. He gave evidence that his younger brother is a medical practitioner.

10. The first named applicant successfully completed the Master of Laws degree he came to study, specialising in international law, and the Tribunal has had regard to a reference provided from an Austrian academic who taught him for one unit within the Master of Laws degree. The Tribunal accepts that the applicant was a successful postgraduate law student.

11. Following the completion of the Master of Laws degree the first named applicant applied for, and was granted entry to, a Doctor of Juridical Science degree at the School of Law, Latrobe University. He told the Tribunal that he was the only one of a cohort of six students who applied for entry into the doctoral program who was accepted. He gave evidence that around this time he was obsessed with the title “Dr” and hoped to return to Pakistan to pursue a career as a legal academic and part-time legal practitioner using the title “Dr” before his name.

12. The first named applicant gave evidence, which the Tribunal accepts, that he completed the first quarter of the Doctor of Juridical Science degree. He gave evidence that during the early stages of the Doctor of Juridical Science degree his daughter, Nawaal, was diagnosed with epilepsy. The Tribunal has had regard to the medical evidence provided, both to the Department and the Tribunal, concerning Nawaal and her medical treatment. In particular, the Tribunal observes that Nawaal has been under the care of a specialist neurologist at the Royal Children’s Hospital in Melbourne, Victoria.

13. The applicant told the Tribunal that at this time he decided to change career to ‘something that required lesser time and lesser attention’.

14. The Tribunal questioned the first named applicant in relation to his future plans. He told the Tribunal that he plans to start an automotive business in Pakistan and that his father has given him a block of land in Pakistan from where he can construct a workshop and residence if need be. He said that he has had this plan since around the end of 2013. His oral testimony was that he hoped that this plan would be realised by the end of the year (2018).

15. Since the end of 2011 the first named applicant has pursued a series of VET level qualifications at different registered training organisations in Melbourne. He has studied management, automotive mechanical technology, human resources management, automotive management, accounting and automotive mechanical diagnosis. The first named applicant struggled to explain the relevance of some of his study to his future plans. For instance, despite claiming to want to open an automotive workshop since 2013, he could only say that he committed to a yearlong diploma in human resources management in 2015 because he knew that he would need to employ staff in the workshop at some stage. At the time of the Tribunal hearing he was enrolled in a Certificate III in Automotive (Heavy Vehicle) at an institute trading as ‘Training Australia First’.

16. The first named applicant gave evidence that he is currently working as a mechanic at HA Automotive in Thomastown, Victoria. He told the Tribunal that he earns between $700-$800 AUD per week and ordinarily works between 15 to 25 hours per week. He said that he doesn’t work more than 40 hours per fortnight. He gave evidence that he previously practised law in Pakistan where he earned the equivalent of approximately $1,000 per month. He said that he also earned a small amount of money teaching mercantile law part-time. It is common knowledge that there is an economic disparity between Australia and Pakistan and the Tribunal considers that the applicant’s employment in Australia is an economic incentive for him to seek to maintain residence in Australia for as long as he can.

17. The first named applicant told the Tribunal that he has another daughter, Mishaal, aged 8 years, who is in primary school in Melbourne. The applicant said that part of the reason he was seeking review in the Tribunal was that he didn’t want Mishaal’s immigration record to have a negative mark against it in the event that she wished to return to Australia at some stage in the future. The Tribunal accepts that apart from his wife and children, the balance of the first named applicant’s family remain in Pakistan. The applicant most recently returned from visting Pakistan on the day of the hearing and the Tribunal accepts the applicant’s evidence that he has returned to visit regularly. The Tribunal considers that the first named applicant has been able to maintain his relationships with family in Pakistan from Australia and does not consider this aspect to be a distinct incentive for him to return to Pakistan.

18. The first named applicant confirmed that there isn’t any military service, political or economic reasons which prevent him from returning to Pakistan.

19. The first named applicant told the Tribunal that he plans to return to Pakistan with his family in October 2018 following the completion of his current Certificate III in Automotive (Heavy Vehicle) course. The Tribunal does not accept this.

20. The first named applicant advised that he has only ever travelled to other countries in transit and has never had any other immigration or visa issues.

21. The Tribunal heard limited oral evidence from the first named applicant’s wife. The Tribunal has considered her testimony but does not rely on it as the reason, or a part of the reason, for affirming the decision under review.

22. 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 first named applicant intends genuinely to stay in Australia temporarily. It is common knowledge that the first named applicant’s daughter, Nawaal, would not have access to the same quality of medical care in Pakistan as she does in Australia. The Tribunal considers this is a significant incentive for the first named applicant to seek to circumvent the permanent migration program and continue to maintain residence in Australia using the student visa subclass. The Tribunal considers that for many years the first named applicant has been maintaining residence in Australia by completing a series of short and inexpensive VET level courses. Accordingly, the Tribunal finds that the first named applicant does not meet cl.572.223(1)(a).

23. The Tribunal has found the first named 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 first named 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 first named applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the first named applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    P. Wood
    Senior Member