Kamshish (Migration)

[2020] AATA 5400

Kamshish (Migration) [2020] AATA 5400 (12 October 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eslam Kamshish

CASE NUMBER:  1905366

DIBP REFERENCE(S):  BCC2018/5465032

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 October 2020 at 2:57 pm (VIC time)

DATE OF WRITTEN RECORD:                21 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 21 October 2020 at 4:36pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – multiple course enrolments not completed – lengthy stay in Australia – property ownership in home country – value of current course to future career – maintaining ongoing residence in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 February 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant in this case applied for the visa on 5 December 2018 to undertake study in Australia.  This case involved a subclass 500 student visa application.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994. The applicant appeared before the Tribunal on 12 October 2020 to give evidence and present arguments. The hearing was conducted with assistance of an interpreter on an as-needs basis in the English/Arabic languages.

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

6. The criteria for a subclass 500 student visa are set out in clause 500 of schedule 2 to the regulations. The primary criteria in clause 500.211 to 218 must be satisfied by at least one applicant of the members of the family and clearly satisfies the criterial. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

7. In considering whether the applicant satisfies clause 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 section 499 of the Act. The 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; the value of the course to the applicant’s future; the applicant’s immigration and any other relevant matter.

8. The applicant in this case is an Egyptian male who first arrived in Australia on 15 November 2005 on an initial student visa.  The applicant was subsequently granted two further student visas thereafter.  The student visa, the subject of this application, is the applicant’s fourth student visa application and was lodged on 5 December 2018. 

9. The applicant is currently enrolled in a certificate IV in marketing and communication which is scheduled to conclude in April 2021 thereby extending the applicant’s time in Australia to approximately 16 years. 

10. Prior to arriving in Australia the applicant disclosed in his response to request for student visa information that he completed a diploma of electronics and computer studies in his home country.  He did not describe any employment in his home country in his response prior to entry into Australia.

11. Since arriving in Australia the applicant has undertaken or been enrolled in the following courses of study: a certificate III in business administration at Astute Training which the applicant did not complete; a diploma of management at Sydney Technical Institute which the applicant never started; a diploma of management at the Sydney Technical Institute which the applicant never started; a bachelor of business at King’s Own Institute which the applicant never started; a diploma of business at the Loura Business College which the applicant never started; an advanced diploma of business at the Loura Business College which the applicant never started; an advanced diploma of tourism management which the applicant did not complete; a certificate IV in business at Astute Training College which the applicant completed; an advanced diploma of business management at Cornell Institute of Business & Technology which the applicant did not complete; an advanced diploma of business marketing at Canterbury Business College which the applicant did not complete; a diploma of leadership and management which the applicant completed; an advanced diploma of leadership and management which the applicant completed; and a diploma of project management which the applicant completed.  The applicant is now currently enrolled in a certificate IV in marketing and communication which scheduled to conclude in April 2021

12. In support of his applicant’s review the applicant submitted a suite of academic documents demonstrating course attendance, grade attainment and course completion, the COE for a certificate IV in marketing and communication and a response to request for student visa information pursuant to section 359(2) of the Migration Act. The Tribunal has had regard to the entirety of these documents and material before the department, the delegate’s decision record and the applicant’s oral evidence at hearing. The Tribunal has had regard to the applicant’s circumstances in his home country.

13. As for the reasons for not studying his current course in his home country in the response to request for student visa information the applicant stated that he wished to develop skills in an environment where advanced education is the practice.  He said, ‘I know I can study the course in Egypt, that the exposure and skills that I can add to my personal development will not be the same; also we speak Arabic only and here in Australia English is the main language and everyday use that help boost my confidence in communication and deal with my future customers.  I know when I finish my course and return to Egypt I can have a better life together with my whole family’.

14. The applicant’s parents, siblings and children are resident and live in Egypt.  The applicant gave oral evidence that since his arrival in Australia in 2005 he estimates that he has returned home on approximately 12 occasions.  The applicant in his response contended that he has property in his home country being an apartment valued at AUS$400,000.

15. The applicant gave evidence that he has been and remains a self-employed painter in Australia and he has been working as a painter under his own Australian Business Number since 2007.  In his response he disclosed an annual salary of approximately $21,000 per annum.  The applicant does not have any concerns about military service or civil or political unrest.

16. The Tribunal is unable to accept the applicant’s reasons for not studying in his home country due to the fact that his statements expressed in the response for request for student visa information failed to demonstrate that the applicant had undertaken any significant research into the availability of his current course in his home country.

17. Although the Tribunal acknowledges that the applicant’s family reside in Egypt in these circumstances the Tribunal does not consider that the applicant’s family present a significant incentive for him to return to his home country when considered against his potential economic circumstances in Australia in the form of his ongoing self-employment. 

18. The Tribunal is of the view further and is demonstrated by the fact that the applicant has been and proposes to rather be in Australia for approximately 15 years.  The Tribunal finds that the clear length of time the applicant has remained in Australia, approximately 15 years, to be a fact that is in and of itself entirely inconsistent with the notion of a genuine temporary entrant.  The Tribunal finds that the applicant’s financial circumstances in his home country in the form of real estate is not outweighed by the applicant’s current financial circumstances in Australia in the form of his ongoing self-employment

19. The Tribunal places significant weight on the fact that the applicant has been in Australia since 2005 and has undertaken an extraordinary number vocational courses which are entirely inconsistent with one another from a course content perspective some of which he has finished, others which he did not finish and others which he never started at all as being behaviour that is entirely inconsistent with that of a genuine student.

20. The Tribunal informed the applicant that his study history and the fact that he has been here since 2005 might be the reason or part of the reason that the Tribunal might affirm the decision under review.  The applicant said to the Tribunal that he did not agree with many of the sentiments expressed in the delegate’s decision as to the reasons for the refusal for granting a student visa in this case.  The applicant said he thought there were errors in the decision.  The applicant did not agree that he was in Australia for work purposes.  The applicant did not agree with the delegate’s contention that the applicant’s children and wife were in Australia with him.  The applicant apparently informed the Tribunal that he applied for dependant student visas for his wife and children some years ago, but that request was refused.

21. The applicant further stated to the Tribunal that in terms of his employment he works as a painter 20 hours per week to pay for the rent and that his particular study fits in with his obligations as a student.  The applicant further candidly informed the Tribunal that it was his view that he is in Australia to study and he is not here to do anything else other than to study.  The applicant further informed the Tribunal that he was involved in a serious car accident some years ago which caused him psychological distress and as a result of which he sustained serious injuries.  The applicant stated further that this car crash had an impact upon his capacity to study at the relevant time.

22. The Tribunal acknowledges all that evidence and although it notes that the applicant has not provided any medical evidence to support his claims in relation to the injuries he sustained in a car crash, the Tribunal accepts that the applicant may have had and suffered some physical and psychological injuries as a result of the car crash and accepts that for a modest period of time the applicant may have been prevented from studying.  However, it is clear based on the matters that I have set out above that the applicant has been in Australia since 2005 and has undertaken an extraordinary number of courses most of which he has not completed and on any view the Tribunal simply cannot be satisfied that there is an explanation for the sheer lack of course progression and the number of courses the applicant has undertaken in the circumstances but is consistent with the notion of being a temporary entrant in Australia.

23. Whilst the Tribunal acknowledges and accepts that people may change course direction or study pathways, the Tribunal finds that it is simply not consistent with the behaviour of a genuine student to seek to change study pathways over the course of the period that the applicant has as evidenced by the courses set out above or it is not objectively demonstrated how those pathway changes were beneficial to the applicant in the future to an extent would outweigh the financial commitment involved in doing further study.

24. The Tribunal has had regard to the applicant’s circumstances in Australia.  The Tribunal acknowledges that there is no evidence before it of significant community ties to Australia.  However, based upon the sheer number of courses the applicant has been enrolled in and the amount of time that he has been onshore the Tribunal is of the view that the applicant is utilising student visa migration programs for the purposes of remaining in Australia on a more permanent basis.

25. As to the applicant’s level of knowledge into his intended course and his education provider the Tribunal has had regard to the applicant’s statement in his response for request for student visa information.  The applicant stated that he has always wanted to develop his skills in an environment.  The applicant stated further that the college location, the course and the specialisation of the course and the tuition fee is reasonable.  He stated further that the teachers are all professional and of assistance to him.  Based upon those statements the Tribunal cannot be satisfied that the applicant has demonstrated any reasonable level of knowledge into his supposed course contents and education provider.

26. Due to the sheer volume of courses that the applicant has undertaken in the length of time he has been in the country, the Tribunal is of the view that the applicant is enrolling in his current course with the primary intention of seeking to circumvent the intentions of a student migration program and remain in Australia on a more permanent basis.

27. The Tribunal has had regard to the value of the course to the applicant’s future.  The Tribunal notes that the applicant’s current course is an academic regression from the advanced diploma of leadership and management that he has already completed.  The Tribunal notes that the applicant’s current course is not consistent with the other fields of study the applicant has undertaken in the past as evidenced from the courses set out above.

28. The Tribunal has had regard to the statements of the applicant as set out in his response to request for student visa information.  The applicant stated that being a painter requires a good knowledge both of project and marketing management so that he may be able to provide quality service and good marketing strategies to attract more clients at the end of his course.

29. He also contended that he will be able to apply for prospective clients in Egypt as a result of completing the course.  The applicant further stated that he expects an experienced painter at an entry level in Egypt to obtain an average salary of approximately EGP$66,000 and at a senior level one can expect to earn approximately EGP$109,000.

30. The Tribunal is not satisfied that the applicant has objectively demonstrated the value of the proposed course to his future.  The Tribunal is unable to accept the assertions as to the value of the course to the applicant’s future as he has not provided any objective evidence as to how his current course would assist him improve his employment prospects as a painter in view of the significant work experience in that field that he already has.  Having regard to the significant work experience as a painter the applicant already has and the several vocational level courses the applicant has already completed the Tribunal is of the view the applicant is more than qualified to return to his home country and embark upon a career as a painter.

31. The Tribunal has had regard to the applicant’s immigration history.  The Tribunal acknowledges there is no evidence of refusals or cancellations before the Tribunal.  However, the Tribunal is troubled by the fact that the applicant has been in Australia since 2005 and undertaken an extraordinary number of vocational level courses that are not related to one another in circumstances where he has not completed most of those courses.

32. The Tribunal simply does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily but rather the Tribunal finds that this behaviour demonstrates an intention to utilise the student migration program to maintain ongoing residence in Australia.  Although the Tribunal acknowledges that the applicant has provided information to the Tribunal which clearly indicates that he has completed some vocational level courses to date.  Considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

33. On the basis of the above the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and accordingly does not meet clause 500.212(a) as the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay in Australia as a student as required by clause 500.212..

34. Given the above findings the Tribunal finds that the criteria for the grant of a subclass 500 student visa are not met.  Accordingly, the decision under review must be affirmed.  The Tribunal affirms the decision not to grant the applicant a student visa.

35. This is an oral decision made at 2.57 pm on 12 October 2020.  This now includes the hearing and the parties are free to leave. 

    DECISION

36. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member