Hameed (Migration)

[2018] AATA 1901

Hameed (Migration) [2018] AATA 1901 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Hameed

CASE NUMBER:  1621209

DIBP REFERENCE(S):  BCC2016/2990969

MEMBER:Stephen Witts

DATE:4 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 May 2018 at 1:02pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 ( Student) – Genuine Temporary Entrant – Family ties in home country – Business in home country – Completion of higher qualifications – Further study of lower level education – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 on 25 November 2016 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 8 September 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 delegate in this case refused to grant the visa 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 that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 intends to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. 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.

9. 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.

10. At the hearing the Tribunal had a discussion with the applicant regarding the issues and considerations laid out in Ministerial Direction 69.

    Background

11. According to the applicant he first arrived in Australia in September 2009 as the holder of a TU572 student visa. According to the delegate’s record supplied by the applicant he then applied on shore for a 573 student visa which was granted in April 2011 and was a valid until May 2013. He then applied on shore for a 573 student visa which was granted in July 2013 and was a valid until September 2014. He was then granted another 573 student visa in October 2014 valid until January 2015. He then applied for another 573 student visa which was granted in January 2015. The applicant then applied for a 485 skilled graduate work visa which was granted in March 2015 and was valid until September 2016. The applicant then applied for another student visa on 8 September 2016 which was refused by the delegate on 25 November 2016.

12. The applicant is currently studying a Diploma of Leadership and Management which began on 24 July 2017 and is due for completion on 23 July 2018.

13. According to the applicant he first studied an EAL English course in 2010 soon after his arrival. He then went on to successfully study the following courses: a Certificate IV in Business in 2011, a Diploma of Business in 2011, a Bachelor of Accounting in 2012 and 2013, and a Graduate Diploma of Management in 2014. He then, on his 485 visa, worked his professional year. Subsequent to this he enrolled in his Diploma of Leadership and Management which he is still studying.

    Circumstances in home country

14. The applicant stated that he finished school back in his home country in Pakistan and originally decided that he wanted to come to Australia because it was a great opportunity to learn English and he then enrolled in an EAL course.

15. The applicant stated that he has a mother and father, one brother and two sisters back in his home country who he remains in regular contact with via skype and video. He stated that he had not had any problems maintaining his personal relationships. For these reasons, the Tribunal does not consider the applicant’s personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia.

16. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic, or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, or the applicant’s circumstances in the home country relative to others in that country.

    Circumstances and study in Australia, and the value of the course to the applicant’s future plans

17. The applicant stated that he now lives in Hobart in rental accommodation. He stated to the Tribunal that he moved from Melbourne to Tasmania because it was a better environment in Tasmania to continue his studies and in particular to study his Diploma of Leadership and Management.

18. The applicant stated that he is involved in casual work, usually security jobs, where he earns up to $400 AUD for 20 hours per week work. He stated that he had been working in this field since 2012 but is not currently employed. He stated that when he was on his 485 Visa he was earning more than $700 AUD per week. He indicated that his father was also assisting him in paying for his studies.

19. The applicant stated that his family were involved in business back in his home country. These businesses included a petrol station, a spare parts business, and a photo studio. The applicant claimed that this constituted an incentive to cease residence in Australia. Property overseas is readily sold for cash, or indeed may never be sold and may instead produce income in the form of rent; the holding of such property is therefore no effective incentive to cease residence in Australia. The Tribunal finds that despite this stated incentive to return home the applicant continues to reside in Australia and continues to study a low-level diploma course.

20. When asked by the Tribunal as to why he was now pursuing a lower level Diploma of Leadership and Management course when he has already done a Certificate IV in Business, a Diploma of Business, and a Graduate Diploma of Management the applicant stated that he wanted to learn leadership skills that he thought would assist him in the future. When asked why the applicant did not go back home to work in his father’s business or start a new business with his significant accounting and business qualifications the applicant stated that he felt he needed to learn more leadership skills from his diploma level course. The tribunal is concerned by this evidence as no coherent or detailed reasons were given as to how this low level VET diploma level course could assist the applicant considering he has already acquired professional level qualifications in accounting and has already completed his professional year. Also of concern to the Tribunal is that the applicant already has a Graduate Diploma in Management and other business-related qualifications in any case. The Tribunal finds that it would have been most appropriate, recognising the significant qualifications that the applicant had achieved by 2017, that he would have returned home to pursue his business interests. Instead of that the applicant is now studying a low level course which, the Tribunal finds, would not assist him in developing his accounting career back in his home country. If that was the case, the Tribunal finds that the applicant would in fact have gone home in 2017 instead of pursuing study in this low level VET course.

21. In his statement to the delegate (Folio 24) the applicant stated that his family had many different businesses and that with these businesses they require someone to supervise and manage them. He asserted that these businesses employed a number of people who speak different languages and that he needed to study a Diploma in Leadership and Management to polish those skills. However the tribunal is concerned that the applicant did not address his previous qualifications and how they would assist him in managing these business-related responsibilities. The Tribunal finds that the applicant did not generate sound reasoning behind this study trajectory and is in fact continuing in a low-level course to maintain residency in Australia.

22. In the applicant’s statement to the Tribunal dated 9 April 2018 (folio 35) the applicant stated that working in his family businesses, or in any career, would require leadership and management knowledge and skills that were not necessarily provided in his previous courses. The tribunal is concerned that the applicant in fact has already studied general courses that include training in management and business skills. In this statement, the applicant acknowledged that some of the courses he had previously done did include units about leadership but did not explain how his current course would actually increase his leadership skills and knowledge. The applicant, in his statement, then went on to differentiate the requirements needed by leaders in contrast to managers. The applicant suggested that he needed to study a specialist leadership course to learn skills that he hadn’t previously acquired in his management and business related courses. The Tribunal finds however that this justification does not adequately explain why the applicant needs to spend another year in Australia studying another low-level VET course after acquiring a Bachelor of Accounting and also successfully completing a professional year.

23. The Tribunal finds that if the applicant was serious in his stated intention to return home to pursue a professional career he would have already done so. The appropriate time would have been once he had finished his professional year and was able to start his professional life as an accountant. The Tribunal finds that the applicant could not adequately explain what skills he was learning in his current course of study that would assist him in his stated intention of pursuing a professional career. The Tribunal has no confidence that the study now proposed, once completed, will result in the applicant departing Australia.

24. By this time, the applicant had sufficient skills, knowledge and qualifications to undertake the applicant’s future plan, which the applicant claims, lies outside Australia. Instead, the applicant proposed yet further study in Australia, prolonging the applicant’s separation from personal ties in the home country, and incurring significant additional expenses in the form of tuition fees and living costs.

25. On the basis of the above, and having regard to the considerations indicated by Ministerial Direction 69 as they are engaged by the evidence, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

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.

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.

    Stephen Witts
    Member