ISLAM (Migration)

[2018] AATA 4508

ISLAM (Migration) [2018] AATA 4508 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD RAHIDUL ISLAM

CASE NUMBER:  1710832

HOME AFFAIRS REFERENCE(S):           BCC2017/896431

MEMBER:Penelope Hunter

DATE:3 October 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 of Schedule 2 to the Regulations.

Statement made on 03 October 2018 at 9:50am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – applicant’s father’s business – opportunity for leading roles – age of applicant – interests in family assets – past academic record – mental health issues – death of family member – current academic progression – decision under review remitted

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 and Border Protection on 5 May 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 7 March 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

   INFORMATION AND CLAIMS

   Department Application

4. The applicant is a citizen of Bangladesh. He applied the visa in order to undertake study in a Bachelor of Professional Accounting with course dates from 21 November 2016 to 31 July 2019.

5. After completing secondary school in Bangladesh he stated he came to Australia and completed an Advanced Diploma of Accounting. Now he wished to do a Bachelor degree, he believed that he would be able to complete his degree on time successfully and then take control of his family business back home.

6. The delegate in their decision, a copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusing the visa;

   i.The applicant did not provide any evidence with close ties to his home country. It was noted he was single and had no dependent children. He also did not provide any evidence of properties all businesses and his family name. The delegate was not satisfied with the applicable be compelled to return to his home country on account of any economic reasons or family ties.

   ii.The applicant had not provided any evidence that he had made an investigation of further study options in Bangladesh. It was considered that the applicant had failed to provide a clear career plan on completion of his studies.

   iii.It was noted, according to the applicant’s Provider Registration and International Student Management System (PRISMS) records the applicant had not completed any courses in Australia. The delegate considered that the applicant had at times regressed in his studies. He had not provided evidence that he had completed his Advanced Diploma course. The delegate therefore inferred that may be using the student visa program to maintain ongoing residence and circumvent the intentions of the migration program. It was further considered that he had an inconsistent and unsatisfactory study record in Australia.

   Tribunal application

7. prior to the Tribunal hearing the agent for the applicant submitted the following documents;

   i.letter of submission

   ii.Statutory declaration of the applicant.

   iii.Current Certificate of Enrolment for a Bachelor of Professional Accounting with the Homes Institute with course dates from 1 August 2019 to 31 July 2020.

   iv.Interim transcript for the Bachelor of Professional Accounting

   v.Evidence and study competed in Bangladesh. Evidence of the applicant’s family business and family assets in Bangladesh.

   vi.Transcript of the academic record Advanced Diploma of Accounting.

   vii.Medical certificate dated 14 July 2017.

   viii.Death certificate for the applicant’s uncle

8. In his statutory declaration the applicant set out the following information;

   i.It was his dream to study overseas, and such a qualification offers prestige credibility. He decided to study in a similar field to the study completed in his home country. His father had also moved overseas and has his own business. His father inspired him and his financially supported him during his time in Australia.

   ii.He arrived in Australia in September 2015 to study an Advanced Diploma of Accounting, and he did very well in the first semester. As his father has a business he decided to study accounting to work with his father, and generally be part of the family business.

   iii.While studying the Bachelor of Professional Accounting in 2016 he experienced some family issues that impacted on his study. His uncle suffered two heart attacks and passed away in 2017. This greatly affected his family and his mother was also unwell as a result of losing her brother. The applicant experienced mental health issues.

   iv.In time the applicant recovered and he returned to school in July 2017, committed to studying getting good results. He has completed eight subjects so far, and achieved two distinctions and a high distinction

   v.The applicant believed the course would provide him with unique skills and knowledge needed to manage and sustain his family business, including accounting, financial planning, strategic management, investment management, and leadership. He will also be able to learn the fundamentals of business and gain an understanding of how to make the strategic decisions that are required in business management.

   vi.His father’s business is being managed by his mother as he is working as a managing director for a hotel in Saudi Arabia. His parents expect him to take over the family business as soon as possible. This put even more pressure on him to return to his home country, particularly when his mother became ill. However, both his parents understand the importance of his study and the value of the formal qualification so it was agreed he should finish his course and then return to look after the family business.

   vii.He was committed to his study and genuinely wished to pursue education in Australia. He intends to return to his home country, feels it is important thing to do, return to the family business and his family.

9. The applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.

10. The applicant was assisted in relation to the review by their registered migration agent.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 satisfied cl. 500.212.

13. 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?

14. 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.

15. 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.

16. Having considered all the material before it and the relevant factors as set out in Direction 69, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.

17. The Tribunal has been provided with additional information and material which was not before the delegate. The applicant has presented to the Tribunal evidence of his family assets and potential business and employment opportunities. It is accepted that the applicant’s father has a partnership business, providing telecom and library services which is able to provide employment opportunities for the applicant. Further, that with family illness and the death of his uncle he has an opportunity to undertake a leading role in this business. It is accepted that the applicant has family ties in the form of his mother, father and siblings in Bangladesh. While the applicant is single with no dependant’s, he is only 23 years of age and it is not an uncommon circumstance for someone of his youth. The applicant has provided evidence of several properties held by his parents, from which the family derives income. The applicant claimed rights as the eldest son to an interest in these properties. It is accepted that relative to others in his home country the applicant enjoys a position of considerable affluence. The Tribunal is satisfied that the applicant has family and economic incentive to return to his home country.

18. There is no evidence that the applicant has any military service commitments. The applicant also claimed that there were no circumstances of civil or political unrest that would act as an incentive for him to remain in Australia.

19. As to the applicant’s circumstances in Australia, he has a family friend, who lives in Sydney with his wife. However, the applicant claimed to have no close family. There is no evidence that he has entered into a relationship of concern. He is working casually at Coles Supermarket and renting in share accommodation. The Tribunal accepts the submission that the applicant did not see any future career in his current employment, when considered with the opportunities in his home country. The Tribunal is satisfied that the particular circumstances of the applicant do not indicate that the applicant would have an incentive to remain in Australia.

20. The applicant’s past academic performance is of concern for the Tribunal. The applicant did not complete his initial Advanced Diploma of Accounting, although he performed satisfactorily in his first six months. After this he enrolled for a short period in Commercial Cookery, only to return back to the Advanced Diploma, however he still did not complete the qualification. The applicant’s marks for his first two trimesters of his Bachelor of Accounting are unsatisfactory. The Tribunal has considered the explanation offered by the applicant that he was initially not enjoying accounting, had sought advice from an agent and tried Commercial Cookery, however this was also not to his liking. When he enrolled in Accounting again there had been changes in his family circumstances, and being apart from his family at this time caused considerable mental health issues. The applicant has provided evidence to support his claims regarding the death of his uncle. He has also submitted medical evidence that he was suffering from depression and sought treatment in the first six months of 2017. The applicant spoke frankly to the Tribunal about this period and acknowledge his unsatisfactory conduct, submitted that he was young and crazy and was not behaving in an appropriate manner. Moving on from June 2017, the applicant’s academic record demonstrates that he has since that time engaged in his studies and his performance has improved dramatically. Over the last year, while awaiting review, the information from his education provider demonstrates that he has engaged, progressed and performed in the manner expected of an applicant in Australia on a student visa.

21. The Tribunal accepts the applicant’s evidence that he is in Australia for the purposes of a good quality, world recognised education. The applicant commenced, but not completed any tertiary studies in his home country. He holds no post-secondary school qualifications. The applicant told the Tribunal frankly that he was ashamed of the time he had wasted. The events in his family had brought home to him his responsibility. He was fortunate that his father agreed to fund his further studies and he was dedicated to completing his qualifications. The applicant acknowledged that he must also meet his family expectations, his relatives were aware that he came to Australia for a degree and they will expect him to return with qualification. The applicant has already spent over $25,000 in the pursuit of his degree, he has progress through more than half of these studies, the Tribunal accepts that the applicant would not engage in study at this level, at this costs if he was merely interested in maintaining residence in Australia.

22. There is no evidence that the applicant has a migration history of concern. He claimed never to have previously been refused a visa or had a visa considered for cancellation. The applicant arrived in Australia in August 2015, with the intention of undertaking tertiary qualifications. He now appears on track towards this goal.

23. While the Tribunal’s concerns about the applicant’s past academic performance are not inconsequential, the Tribunal was impressed by the evidence of the applicant at the hearing. His claims of mental health issues, and having sought treatment, and its effect on his studies is documented contemporaneously by the medical evidence. He has supported his claims in relation to his uncle’s death and family circumstance with other documentary evidence and it is clear that he has currently engaged in his studies. In these circumstances the Tribunal considers that it is appropriate on balance to give to the applicant the benefit of the doubt. Therefore having considered the circumstances of the applicant and the relevant criteria in Direction 69, The Tribunal accepts the applicant’s reasons as to why he sees Australia as a better environment in which to obtain well-regarded qualifications and improve his career and remuneration prospects in his home country.

24. 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).

    Does the applicant intend to comply with visa conditions?

25. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

26. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)):8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

27. The applicant has provided with his visa application and undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case. The Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

28. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

29. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

30. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

31. 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

32. 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 of Schedule 2 to the Regulations.

    Penelope Hunter
    Member