Hussain (Migration)

[2018] AATA 2342

Hussain (Migration) [2018] AATA 2342 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Imran Hussain

CASE NUMBER:  1700358

DIBP REFERENCE(S):  BCC2016/3683219

MEMBER:M. Edgoose

DATE:21 May 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 21 May 2018 at 12:22pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant period of time spent in Australia – Limited value of further studies – Where applicant intends to maintain residency in Australia – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 on 21 December 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 4 November 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 visas 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 intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 30 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 genuinely to stay in Australia temporarily.

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.

   Background

10. The applicant gave evidence at the hearing that he first arrived in Australia on 20 August 2008 on a 572 student visa. The applicant stated that while onshore he was granted a UC-457 temporary work skilled visa on 20 June 2014 which expired on 4 November 2016.

11. The applicant is from Pakistan and applied for the visa on 4 November 2016 and the delegate refused to grant the visa on 21 December 2016 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

12. The applicant submitted to the Tribunal COE’s for a Diploma of Leadership and Management (AAT folio 51) through Education Access which commenced on 19 February 2018 and will end on 17 February 2019 and an Advanced Diploma of Leadership and Management (AAT folio 52) through Education Access which is due to commence on 18 March 2019 and will end on 15 March 2020.

    Circumstances in home country

13. Before coming to Australia, the applicant had completed his secondary schooling in 1998 and a Bachelor of Computer Science in Networking through South West University in 2003 (AAT folio 30) and had worked at a computer networking company for a period of three years and was paid AUD $300 per month.

14. The applicant stated that he had returned to Pakistan five times for a period of one and a half months each time since coming to Australia to visit his wife and child. The applicant’s last visit back to Pakistan was in January 2016. The applicant told the Tribunal that his wife and child have not come to visit him during the almost 10 years he has been in Australia. The applicant informed the Tribunal that Australia is the only country that he has travelled to outside of Pakistan. The Tribunal finds the applicant’s travel history unremarkable.

15. The applicant stated to the Tribunal that his parents, two brothers and one sister live back in Pakistan and one sister lives in Japan and one brother in England. The applicant informed the Tribunal that his wife and child live with his parents in Pakistan and that his father is a consultant and runs an agriculture business.

16. The applicant informed the Tribunal that he has been able to manage personal relations with his parents, brothers, sisters, wife and child while living in Australia by making contact every two days via the social media application Skype. In these circumstances the Tribunal does not consider the applicant’s personal connections overseas would serve as a significant incentive for the applicant to return to Pakistan.

    Circumstances in Australia and study history in Australia

17. The applicant submitted to the Tribunal certificates for the following courses that he has completed since arriving in Australia on 20 August 2008.

    ·Responsible Serving of Alcohol (AAT folio 31) through Department of Justice Liquor Licensing on 11 November 2008

    ·Food Safety Supervisor (AAT folio 32) through Hales Institute on 2 March 2009

    ·Certificate III in Hospitality (Commercial Cookery) (AAT folio 36) through Chelsea International College on 18 December 2009

    ·Diploma of Hospitality Management (AAT folio 39) through the City College of Melbourne on 5 November 2010

    ·Diploma of Business (AAT folio 41) through the Victorian Institute of Technology on 20 March 2012

    ·Diploma of Information Technology (Networking) (AAT folio 43) through the Victorian Institute of Technology on 21 January 2014

18. The applicant stated to the Tribunal that from 20 June 2014 until 4 November 2016 he was on a UC-457 temporary work skilled visa.

19. The applicant said to the Tribunal that he currently works 16 hours per week at a restaurant called 162 Beach and earns AUD $21 per hour. The applicant told the Tribunal that he currently has a permanent job offer at 162 Beach in Frankston but has not been offered sponsorship at this stage. The applicant informed the Tribunal that he currently lives in Frankston with a friend and pays AUD $550 per month towards the rent. The Tribunal considers that the applicant’s circumstances in Australia present as a strong incentive for the applicant to remain in Australia.

20. The Tribunal considers that the economic disparity between Pakistan and Australia is common knowledge and is a real incentive for the applicant to remain in Australia. The applicant did not provide or inform the Tribunal as to his future earning capacity back in Pakistan. Even taking into account the greater living expenses in Australia the Tribunal finds that the applicant’s earning capacity in Australia would outweigh the applicant’s earning capacity back in Pakistan and this would be an incentive for the applicant to remain in Australia.

21. The applicant’s Statement of Purpose to the Department (DIBP folio 43 – 44) stated that in the future he has the option of working as a chef or restaurant manager in the hospitality industry or opening a business in Pakistan with his father who has secured a large sum of money to invest in the area of hospitality back in Pakistan.

22. The applicant said to the Tribunal that the reason for not doing these courses back in Pakistan was that “because these courses are not in Pakistan and they are more advanced in Australia. Give you good ideas.” The applicant when pressed by the Tribunal was not able to elaborate further about why he had not completed his studies back in Pakistan. The Tribunal acknowledges that the courses available in Australia are more advanced than those offered in Pakistan.

    Value of the course to the applicant’s future

23. The applicant’s evidence at hearing was that he wished to find a job or open his own business when he returns to Pakistan. When pressed the applicant indicated that he would like to open a business like a restaurant with his father and that it would be a buffet style restaurant and would have a mixture of Australian and Pakistan type food. When prompted by the Tribunal whether the applicant had nothing further to add about his future plans back in Pakistan the applicant responded “I will manage the restaurant”. The Tribunal finds the applicant’s future plans back in Pakistan to be vague and speculative.

24. The applicant was unable to offer any further details as to his claimed future plan overseas.  The Tribunal was required to press the applicant at hearing in order to obtain the details that were provided.

25. The applicant informed the Tribunal that his current course of study “will provide me a good future. Having education from Australia is very valuable. They recognise the work experience. Good job or help start my own business”. The Tribunal prompted the applicant if he had anything further to add about the value of his current course and the applicant responded I have nothing else to add.

26. As noted the applicant submitted to the Tribunal COE’s for.

    ·Diploma of Leadership and Management (AAT folio 51) through Education Access which commenced on 19 February 2018 and will end on 17 February 2019.

    ·Advanced Diploma of Leadership and Management (AAT folio 52) through Education Access which is due to commence on 18 March 2019 and will end on 15 March 2020

27. At hearing the applicant was unable to provide a receipt for the Diploma of Leadership and Management course and the Tribunal requested the applicant submit a copy of the receipt by 5 pm 1 May 2018. The Tribunal notes that the applicant did submit the requested receipt by 5pm on 1 May 2018 (AAT folio 57) which indicated that he had made partial payment.

28. At the hearing the applicant was asked to inform the Tribunal about the Diploma of Leadership and Management course of study and the applicant said this course is about “development and use of emotional intelligence” and that he is attending this course three days per week. When pressed by the Tribunal if the applicant could provide further detail about the units of work he was currently studying and their subject matter the applicant was not able to do so.

29. The applicant submitted to the Tribunal COE’s for a Diploma of Leadership and Management (AAT folio 50) and an Advanced Diploma of Leadership and Management (AAT folio 49) both through The Imperial College of Australia which he did not previously complete. The applicant stated to the Tribunal that he has not completed a course of study since his UC-457 temporary work skilled visa expired on 4 November 2016. The Tribunal finds that this is not the behaviour of a genuine temporary entrant.

30. The applicant informed the Tribunal that he “suffered from depression when his nomination was cancelled for the 457 sponsorship” at the restaurant he was working at and that he was hospitalised for one day on two occasions (AAT folio 53 – 54). The applicant submitted doctors reports from Peninsula Health dated 20 September 2017 and 4 March 2018 that stated the applicant had suffered some chest pains and palpitations but was discharged to home on each occasion. The applicant submitted a further medical certificate dated 19 March 2018 from Myhealth Bayside that stated the applicant “has depression secondary to his immigration issues. He is unable to stop thinking about his future in is affecting his sleep. He is also taking medication for hypertension and hyperlipidaemia.” The Tribunal does not accept that the applicant could not have continued with his studies.

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

32. The applicant stated to the Tribunal that he has no issues of concern back in Pakistan but he would prefer to live in Australia.

33. As suggested, the Tribunal considers that the applicant was a university graduate in Computer Science before ever coming to Australia.  Indeed, he had the foundations of a career in information technology on the back of his three years of professional work experience in that field.  In his evidence, he do not explain why he chose to study in Australia at a level significant below the degree level he had already achieved, nor why he would abandon the IT career that he had set in motion, based on the university degree he already had.

34. Having completed a full set of Commercial Cookery and Hospitality Management courses in the VET sector, the applicant chose to continue on with the Diploma of Business. This was arguably unnecessary as the Diploma of Hospitality Management is the more relevant management course to the applicant aspiration in hospitality in the future.  Nevertheless, he completed the Diploma of Business which as its name suggests is a generalised VET sector business qualification.

35. The applicant then proceeded onto a 457 visa in his chosen area of cooking and hospitality which at least provided him with relevant work experience in his chosen field from 2014 to 2016. 

36. It is when the applicant’s 457 visa arrangements came to an end the Department was advised by the applicant that he had an interest in continuing to study in Australia.  There is no evidence the applicant had an interest in studying any course in Australia while he held the substantive 457 visa.

37. By this time, the applicant had been living in Australia, away from his wife, child and other close family members, for around 8 years.  When the applicant’s 457 visa arrangement ended, the applicant was a university graduate, had a complete set of cookery and hospitality management courses, along with the Diploma of Business, and had substantial work experience in the hospitality field in Australia, which ought to have given him sufficient familiarisation with Australian cuisine for him to have an Australian inspired menu as he had mentioned in his oral evidence.

38. The applicant’s latest proposal is to study the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management.  The Tribunal observes that the applicant has already completed the Diploma of Hospitality Management. Hospitality management is a discipline which is more directly relevant to the running of a hospitality establishment than are general VET sector leadership and management courses because, as its name suggested, hospitality management is directed towards the specifics of successfully managing a hospitality business. The Tribunal considers that the latest study proposal adds little additional incremental value when placed on top of the substantial and more relevant qualifications already achieved, in particular the hospitality management skills already acquired.  For this reason, the Tribunal finds the study now proposed to hold limited additional value to the applicant’s future.

39. As noted above, the applicant had and retains incentives to cease residence in Australia and return to his home country where the applicant’s ties lie, including his wife and child. The applicant had a very definite choice when his 457 visa arrangement concluded in 2016. By this time, the applicant had sufficient skills, knowledge, qualifications and work experience in his chosen field to undertake the applicant’s future plan, which the applicant claims, lies outside Australia. That is, the applicant had every professional and personal reason and every claimed incentive to depart Australia and the applicant did not depart.

40. The applicant’s own conduct in proposing further stay to study courses of very limited value to the stated future plan suggests that the applicant will not yield to the array of claimed incentives to leave Australia, but rather intends to stay on in Australia despite the claimed future plan lying outside Australia.

41. It is the applicant’s claim that the intention has always been to stay in Australia temporarily and that intention is still held.  If that is and was so, the Tribunal finds the applicant would have departed Australia to reunite with his wife, child and other close relatives and to set in motion the claimed future plan of entering the hospitality industry in Pakistan by the end of 2016.

42. The time for that to have reasonably occurred is now past and the Tribunal finds that the applicant proposed further stay and study is because the applicant does not intend to action the claimed future plan outside Australia, but rather intends to stay on in Australia indefinitely, and now proposes courses of limited value to the claimed future plan, so as to be granted a further student visa with the primary purpose of maintaining ongoing residence in Australia.  While the Tribunal acknowledges that the applicant’s wife and child have never visited Australia, the Tribunal considers that the applicant is able to bring them onshore in the future if he is granted a substantive visa.

43. Taking into account the considerations indicated by Direction 69 as they are relevant to the matters before the Tribunal and on the basis of the above; 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).

44. 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.

1. 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

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

   M. Edgoose
   Member