Islam (Migration)

[2019] AATA 956

Islam (Migration) [2019] AATA 956 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Monowarul Islam

CASE NUMBER:  1717416

HOME AFFAIRS REFERENCE(S):           BCC2017/1741314

MEMBERs:Wendy Banfield (Presiding)

Frank Russo

DATE:26 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 March 2019 at 11:53am

Statement made on 26 March 2019 at 4:03pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolled in a range of certificate and diploma courses over a period of ten years – remained in Australia without returning to home country– value of proposed course – obtained bachelor qualifications in the same field in Bangladesh already – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 26 July 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 16 May 2017. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because of the applicant’s immigration history and circumstances in Australia. In particular, the delegate was not satisfied that further education in Australia would be of significant benefit in achieving the applicant’s stated goal given the qualifications they had already obtained in Australia. The delegate stated that the applicant seemed to be circumventing the intentions of the migration program to prolong their stay in Australia, rather than having a genuine interest in studying to benefit his career. The applicant provided a copy of the delegate’s decision with his application for review.

4. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent, however his registered migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary entrant.

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

8. 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?

9. 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.

10. 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.

11. In addition to the application form the applicant provided the Tribunal with a number of other documents relating to his studies. These documents are:

    ·a transcript and certificate of completion from Warwick Institute of Australia for the Diploma of Project Management, both dated 18 April 2017;

    ·a transcript of units of competency achieved and qualification awarded and a certificate of completion for the Diploma of Business from Warwick Institute of Australia, both dated 9 May 2016;

    ·letters of completion from the Warwick Institute of Australia for the Advanced Diploma of Information Technology Business Analysis dated 5 December 2014 and the Diploma of Information Technology (Software Development) dated 21 September 2013;

    ·a transcript and a certificate from Lloyds International College for the Certificate III in Business, both dated 13 May 2010;

    ·a certificate of completion of the Advanced Diploma of Information technology Business Analysis from Windsor Institute of Commerce dated 29 November 2014, as well as an academic transcript for this course dated 5 December 2014;

    ·an interim student transcript from Windsor Institute of Commerce for the Diploma of Information Technology (Multimedia) dated 8 December 2011;

    ·a statement of attainment from Windsor Institute of Commerce for the Diploma of Information Technology (Software Development) on 23 September 2013, and an academic transcript for the same course dated 23 September 2013;

    ·a statement of attainment issued by Windsor Institute of Commerce for the Diploma of Information Technology (Multimedia) dated 16 January 2012;

    ·a final academic transcript and certificate for the Advanced Diploma of Accounting from Clarendon Business College, both dated 28 October 2009; and

    ·a statement of results and a certificate from the Sydney Metro College for the Advanced Diploma of Business, both dated 8 September 2017.

12. The Tribunal has read and had regard to these documents. The Tribunal notes that in addition to these documents, the Department file also contains an affidavit of the applicant’s brother dated 15 June 2017, a letter from the First Security Islami Bank Ltd dated 15 June 2017, a birth certificate of the applicant’s brother, a certificate from Windsor Institute of Commerce for the Diploma of Information Technology (Software Development) dated 23 September 2013, certificates from the Board of Intermediate and Secondary Education, Dhaka dated 26 August 1999, 9 February 2005, 10 February 2005, 8 July 1997, 27 June 2005, Certificate from Tejgaon College, Dhaka dated 15 May 2005, a statement of purpose from the applicant, a letter from NIB dated 16 May 2017 and the applicant’s application for a Student visa.

13. The applicant provided written submissions dated 15 January 2019, in which he asserts that when he first came to Australia in 2007 he had a desire to study Accounting, however he found the education system very different from that in Bangladesh and found it hard to decide which education options he should take. He asserts that despite his studies in various fields, all of the fields relate to Accounting. He indicated at the hearing and in his submissions that he wishes to study Accounting because he would like a career in business or Accounting.

14. The applicant told the Tribunal that prior to arriving in Australia he had obtained a Bachelor of Accounting, however he struggled to obtain suitable work as his results were not great and the job market in Bangladesh is hard. He indicated that he decided to pursue further studies in Australia to obtain better qualifications and improve his future employment prospects. This is consistent with statements which the applicant made in his written submissions, where the applicant refers to a desire to obtain a world-class qualification. At the hearing he stated that he needed the time he has spent studying as it wasn’t easy. He also stated that with further and further study you can obtain more knowledge and continue to find challenges.

15. The applicant told the Tribunal that he is currently enrolled in a Bachelor of Accounting at the Polytechnic Institute of Australia. He indicated that he has completed three semesters of this course, has passed all subjects so far and has an exam next week.

16. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISM database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed. The applicant confirmed that the PRISMS enrolment record was an accurate reflection of his enrolment history.

17. The applicant told the Tribunal that he has a mother, father and brother in Bangladesh. The Tribunal asked the applicant about the statement in the delegate’s decision that the applicant had not returned to Bangladesh in the ten year period between his arrival in Australia and the delegate’s decision. The applicant confirmed this was correct, stating that he has not been back to Bangladesh since arriving in Australia in 2007 because of his studies. He indicated that he talks to members of his family in Bangladesh by Skype video calls.

18. The Tribunal asked the applicant about any employment he has had in Australia. He indicated that he currently works in hospitality. The Tribunal asked whether he has always worked in hospitality while in Australia, but he responded that he has worked in different places and mentioned working in customer service, although he stated he has only worked for twenty hours per week. The applicant stated in his written submissions that he is a well-off student and has financial support to study. However, at the hearing the applicant stated that Australia has given him the opportunity to study and work. He also stated that one of his motivations for coming to Australia in 2007 was because the job market in Bangladesh is hard. Balancing the evidence provided by the applicant at the hearing and in his submissions, the Tribunal finds that the economic circumstances of the applicant present as an incentive for the applicant not to return to his home country.

19. In accordance with the ministerial direction, the Tribunal questioned the applicant about any circumstances in Bangladesh that may induce him to apply for a student visa as a means of remaining in Australia indefinitely. The applicant told the Tribunal that there were no reasons relating to political or civil unrest or concerning military service which would prevent him from returning to Bangladesh and the Tribunal accepts this.

20. There is no evidence regarding the applicant’s circumstances in his home country relative to others in that country, other than his statement that he is a well-off student, and the Tribunal makes no adverse findings concerning the applicant in that respect. The applicant indicated that he does not own a house or other assets in Bangladesh, nor in Australia.

21. When asked about any family and relationships in Australia, the applicant stated that he has friends in Australia and stated he is sharing a home with other people. He stated that he has a cousin in Sydney and at least one cousin in Melbourne. He indicated that he does not have a partner or other relationship.

22. The Tribunal asked the applicant whether he had seen and understood the delegate’s decision. He indicated that he had. The Tribunal put to the applicant information within the delegate’s decision which could be a reason, or part of a reason, for affirming the decision of the Department, namely the personal circumstances of the applicant as outlined by the delegate in the Department’s decision. In particular, the Tribunal noted that if a Student visa were to be granted for the course of study that the applicant applied for, it would require the applicant to remain in Australia until at least December 2020, which would bring the applicant’s total time in Australia on temporary visas or associated bridging visas to approximately thirteen years. The Tribunal indicated the relevance of this information, which may indicate that the applicant is not a genuine temporary entrant. The Tribunal also noted from the delegate’s decision the significant period of time which the applicant has spent in Australia since his initial arrival, with no departures to return to Bangladesh from 2007 until the delegate’s decision. The applicant confirmed with the Tribunal that he has remained onshore in Australia since 2007. The Tribunal also noted the various courses which the applicant has enrolled in and completed. The Tribunal confirmed the relevance and consequences of it relying on the information contained in his application and on the Department’s file. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing and provided responses in line with those in his written submission, namely that his intention is to obtain a qualification in Accounting. He stated that when he first arrived in Australia he was unsure what to study due to the difference in the education system from that in Bangladesh. He stated that his plans are to finish his studies and then maybe return to Bangladesh.

23. The Tribunal asked the applicant about the value of his course of study to his future. His responses were consistent with his written submissions and other statements made at the hearing, namely that he expects his employment prospects and opportunities in Bangladesh to improve with an Australian qualification. The Tribunal notes that since arriving in Australia the applicant has obtained various qualifications at the Certificate III, Certificate IV, Diploma and Advanced Diploma levels. The Tribunal considers these qualifications to be at a lower level than the Bachelor degree which the applicant obtained in Bangladesh. Whilst the applicant is currently enrolled in a Bachelor of Accounting and has completed one year towards these studies, the Tribunal is concerned that this current study was commenced after ten years of study in Australia at the certificate, diploma and advanced diploma levels. The Tribunal is also concerned that the applicant’s current Bachelor Degree studies are in the same field for which he has a Bachelors qualification from his home country. The Tribunal considers that the applicant’s present studies may offer limited additional value to his future over and above his existing Bachelor of Accounting obtained in Bangladesh.

24. Having regard to the criteria in cl.12 of Direction No. 69, the Tribunal recognises that it is important to allow for reasonable time to obtain qualifications and for changes to career and study pathways. The Tribunal is however concerned with the amount of time which the applicant has spent in Australia undertaking a range of short certificate and diploma courses which were not consistent with his existing level of education. At the time of the Tribunal’s decision the applicant has spent over eleven years in Australia on various student visas and associated bridging visas. Although the applicant is currently enrolled in a Bachelor of Accounting, the applicant obtained a Bachelor of Accounting in Bangladesh prior to his arrival in Australia. The applicant did not present sufficient reasons to support the relevance of the course of study to his past or proposed employment in Bangladesh or a third country, other than referring to his poor marks for his studies in Bangladesh and the difficult job market. The Tribunal considers that the applicant’s present studies, in the same field as his existing qualifications obtained in Bangladesh, will only marginally improve his employment and prospects and remuneration in Bangladesh. The proposed further studies, offer limited incremental value when considered alongside the eleven years of short certificate and diploma courses and experience the applicant has already obtained in Australia, and the bachelor level qualification he obtained in Bangladesh prior to commencing his studies in Australia.

25. The Tribunal does not make any adverse findings in relation to the applicant’s compliance with visa conditions or his prior immigration history to other countries. The Tribunal has no information before it as to previous visa applications to other countries. In relation to visas to enter or remain in Australia, the Tribunal notes the applicant’s visa history, which was outlined in the delegate’s decision, and which the applicant confirmed as accurate. The Tribunal notes in particular that the applicant has remained in Australia on Student visas since 2007 and in that time has enrolled in a range of short and relatively inexpensive courses, although he has successfully completed qualifications in each. The Tribunal makes findings in relation to this at paragraphs 27 and 28 below.

26. The Tribunal gave the applicant opportunities to provide any other relevant information. The Tribunal considers that the information and documents provided by the applicant have already been considered in relation to the criteria at clauses 6-14 of Direction No.69 and a consideration of any other relevant matters pursuant to cl.16 of Direction No.69 has been taken into account.

27. Having carefully considered the applicant’s oral testimony regarding his career aspirations and the information provided by the applicant, the Tribunal is of the view that the applicant’s evidence was tailored to explain the range of certificate, diploma and advanced diploma courses which he has enrolled in since 2007, as well as to explain his current enrolment in a Bachelor of Accounting degree. If the applicant’s career aspirations were to improve on his qualification obtained in Bangladesh and to obtain a world-class education, steps towards undertaking a Bachelor Degree in Australia could have been taken at a much earlier stage, rather than enrolment in a range of certificate and diploma courses over a ten-year period.

1. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising reasonable changes which may occur to an individual’s career direction. In our view, the applicant demonstrated an intention to remain in Australia through enrolment in a range of certificate and diploma courses over a period of over ten years, without advancing his educational qualifications to a level above that obtained in his home country. The delegate found that the applicant appeared to be circumventing the intentions of the migration program to prolong his stay in Australia, rather than having a genuine interest in studying to benefit his career. When the Tribunal questioned the applicant about the motivation for his studies, he was unable to articulate the benefits of each additional certificate and diploma course or of his current course, other than noting that with each course you obtain more knowledge and that he wishes to obtain a world class qualification in Australia. The range of certificate and diploma level courses completed over a ten-year period and his current enrolment in a degree course in the same field as his existing degree qualification lead the Tribunal to find that the applicant is using the Student visa programme to circumvent the intentions of the migration programme.

2. This pattern of study and his admission that he has remained in Australia without any return travel to Bangladesh since 2007 suggest to the Tribunal that the incentives to remain in Australia outweigh the incentives for the applicant to return to his home country. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residency in Australia.

3. 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).

4. 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.

5. 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

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

   Wendy Banfield
   Member

   
   

   Frank Russo
   Member