HAIDER (Migration)

[2018] AATA 3314

HAIDER (Migration) [2018] AATA 3314 (22 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr IRAM ALI HAIDER

CASE NUMBER:  1709496

HOME AFFAIRS REFERENCE(S):           BCC2016/4269321

MEMBER:Gabrielle Cullen

DATE:22 August 2018

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(a) of Schedule 2 to the Regulations.

Statement made on 22 August 2018 at 9:30am

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant – Gap in study – Closure of school and personal issues – Slow rate of academic progress –Extension of Confirmation of Enrolment for Bachelor of Business course – Offer to study Masters course – Knowledge of current course – Decision remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 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 12 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 17 December 2016. 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 applicant arrived in Australia on 6 August 2009 on a subclass 572 visa valid to 15 March 2011 and was granted a further subclass 572 visa to 12 November 2012. He was then granted a subclass 573 visa to 21 December 2016. He applied for the visa to which this application relates on 17 December 2016. During his time in Australia he has departed from 5 March 2012 to 24 April 2012, 20 November 2013 to 17 January 2014and  9 March 2016 to 25 March 2016.

4. Confirmations of Enrolments attached to the applicant’s current application refer to the applicant studying a Bachelor of Business from July 2015 to April 2018. A further extension COE to study a Bachelor of Business from 7 May 2018 to 7 December 2018 was submitted. He also submitted an offer to study a Master of Business Administration from 21 January 2019 to 11 December 2020.

5. The evidence at the time of this decision, from the applicant and the Department decision indicates successful completion of the following courses while holding student visas.

   ·Certificate III in English for Further Study in 2009.

   ·Certificate IV in Business Administration in 2010/11.

   ·Certificate III and IV in IT Networking to February 2013. While the education provider closed and there is no certificate available the Tribunal is prepared to give the applicant the benefit of the doubt that he completed these courses, as did the Department.

6. To the Department the applicant advised the following:

   ·He has finished 8 courses towards the Bachelor of Business.

   ·As to not studying from 2013 to 2015 he refers to losing his two maternal uncles, having an accident in Pakistan and breaking up with his girlfriend. He claims as a result he lost his focus on his studies.

   ·Since then he has been focussed on his Bachelor’s degree.

   ·He describes why he chose UBSS as his education provider.

   ·He claims on completion of the course he will be have management expertise for senior management and leadership roles.

7. He attached an academic record showing he had successfully completed 8/12 subjects enrolled in in 2015/2016, information as to the closure of the school and later reopening where he was studying the Certificates II,III, IV and Diploma in IT dated 24 May 2013 and evidence from Noor Hospital as to receiving medical treatment in Pakistan in 2014 including stitching to his shoulder, arms and legs

8. The delegate decided to refuse to grant the visa on 12 April 2017. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that the applicant is not a genuine applicant for entry and stay as a student. The delegate was concerned at the range of areas he had been enrolled in, and outlined these including management, IT, Business Administration and Marketing. He was concerned that the highest level he had completed was a Certificate IV in Information Technology. He noted that following completion of this the applicant did not study from 6 June 2013 to 16 June 2015, being a total of two years. He was concerned that there is no evidence he had sought a deferral or tried to seek any assistance in relation to the death of his uncle and his physical rehabilitation.

9. On 1 May 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

10. On 11 July 2018 the Tribunal wrote to the applicant and invited him to attend a hearing on 6 August 2018. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

11. The applicant provided the following written evidence to the Tribunal:

    ·Academic record from UBSS College dated 28 April 2018 indicating he has successfully completed 15/24 subjects towards the Bachelor of Business (Management).

    ·Evidence from UBSS indicating the applicant has paid up to 23 May 2018, $36,124 towards the Bachelor of Business.

    ·Certificate confirming the applicant’s enrolment in the Bachelor of Business (Management) from 13 July 2015 to 27 April 2018 with an extension to December 2018 to finish the course.

    ·Applicant’s timetable indicating he is enrolled in three subjects from 7 May 2018 to 17 August 2018.

    ·Evidence of suffering an elbow injury in a cricket accident in November 2015.

    ·Letter from UBSS dated 10 August 2018 indicating the following:

    oThe applicant has paid in full all subject fees including for trimester 2, May 2018 to 17 August 2018.

    oHe is enrolled in three subjects in Trimester 2, 2018 from May 2018 to August 2018.

    oHe will enrol in 4 subjects in Trimester 3 2018 from 3 September 2018 to 30 November 2018.

    oHe has paid in advance his four subjects for Trimester 3, 2018.

    oReceipts from USBSS showing payment for Trimester 3 subjects in 2018.

    ·Evidence from the Department that on 25 August 2015 they decided not to cancel his visa. Evidence submitted by the applicant to the Department as to the cancellation was also included including a psychologist report dated 3 August 2015.

    ·COE to study a Master of Business Administration from 21 January 2019 to 11 December 2020.

    ·A statutory declaration dated 2 August 2018 explaining his slow progress including injury in 2015/6. He claims he has completed 14/24 subjects and he will complete 3 subjects on 16 August 2018 which will mean he has completed 17/24 subjects. He claims he is enrolled to complete 4 subjects in Term 4. He claims he wishes to undertake the Master’s degree and then return to Pakistan to open his own IT business to subcontract IT work to big corporations and government departments.

12. The applicant appeared before the Tribunal on 6 August 2018 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent. He was given until 20 August 2018 to provide further evidence discussed at hearing.

13. As to his education in Pakistan, he said he completed Year 12 and part completed a Bachelor of Commerce.

14. As to his family, his parents and siblings are in Pakistan and he has an Aunt in Australia. He said he is not in a relationship and has no property in Pakistan.

15. As to his work in Pakistan, he said he worked in marketing. As to his work in Australia, he said he is a part –time administration clerk at s.40 Security trading as Reliance Labour. He said prior to this he worked in staff security.

16. He said he has no military commitments or civil and political reasons why he  cannot return to Pakistan.

17. The Tribunal raised with him via the process outlined in s.359AA his lack of any enrolment from February 2013 to June 2015. He refers to the closure of his school in 2013 and that he was suffering from depression. His representative referred to the decision of the Department dated 25 August 2015 not to cancel his visa.

18. He said he came to Australia to obtain good quality higher education.

19. The Tribunal raised with him its concerns as to his very slow rate of progress and lack of enrolment from 2013 to 2015. He said he will complete the Bachelor of Business this year and it is his dream to obtain it. He referred to starting his own business in Pakistan with his family.

20. He was able to provide knowledge of his current course consistent with information as to the course provided by the education provider

21. His representative advised that the applicant believed he was enrolled from 2013 to 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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 meets cl.500.212(a).

23. Clause 500.212(a) 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

24. 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.

25. 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.

26. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration.

27. This is a difficult case to assess. The applicant’s past study history and slow rate of course progress is of concern. Since his arrival in 2009 he has only successfully completed an English course in 2009, Certificate IV in Business in 2011 and Certificate III and IV in IT in 2012/2013. The evidence indicates he was not studying, enrolled achieving course progression in 2014 and 2015. The Tribunal notes the Department decided not to cancel his visa in 2015 due to extenuating circumstances.

28. The Tribunal views his positive study record from 2016 for the Bachelor of Business as persuasive that he is a genuine student. The Tribunal views as indicative of a genuine student his study record, completing 15/24 subjects, being enrolled in 3 subjects to be completed in August 2018 and that he is enrolled in a further four subjects in Trimester 3. It notes he has paid in advance his four subjects for Trimester 3, 2018 and in total has paid over $36,000 to achieve the Bachelor of Business so far. It notes he was able to provide detailed knowledge as to the current course.

29. The Tribunal is satisfied that despite his initial difficulties, the applicant is committed to study in Australia so he can improve his employment and career opportunities when he returns to Pakistan.

30. The Tribunal finds the reasons as to why he wishes to continue to study the course he is enrolled in as credible. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study.

31. The Tribunal accepts that the balance of his family resides in Pakistan. There is no adverse immigration record other than that discussed above with regard to the Department considering the cancellation of his visa for lack of study. There is no evidence of military service commitments or political and civil unrest In Pakistan which would present as a significant incentive for the applicant not to return to his home country.

32. 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).

33. 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

34. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member