KHAN (Migration)

[2019] AATA 1851

KHAN (Migration) [2019] AATA 1851 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khan Gul KHAN

CASE NUMBER:  1709424

DIBP REFERENCE(S):  BCC2016/4394601

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          27 February 2019 at 1:12 pm (VIC time)

DATE OF WRITTEN RECORD:                18 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – unsatisfactory academic progress – study gap of 10 months – value of course – conflicting future plans – length of stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 11 April 2017 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 27 February 2019 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. MEMBER:  Mr Khan, to be eligible for the grant of a student visa an applicant must satisfy a range of requirements set out in the Regulations. 

4. You first arrived in Australia on a student visa on 21 June 2012 and you applied for this student visa on 29 December 2016.  Your application was refused on 11 April 2017 because having considered your circumstances the delegate was not satisfied you met the Genuine Temporary Entrant requirements.  She believed you had completed sufficient studies at a Vocational Education and Training level and was not satisfied you genuinely intended to stay in Australia temporarily and therefore found you did not satisfy clause 500.212.  You appealed that decision to be reviewed by this Tribunal.

5. With your application you included a copy of the primary decision.  When matters come here the role of the Tribunal is to take a fresh look at your application and make a new decision as to whether or not you are eligible for the grant of a student visa.

6. To satisfy clause 500.212 an applicant must be a genuine student who intends to stay in Australia temporarily and intends to comply with any conditions to which the visa may be subject.

7. To be a genuine student you must be engaged in and applying yourself to a meaningful program of study progressing academically down an identifiable path.  To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily and in considering whether or not someone is going to comply with conditions of their visa we look at their record of past compliance.

8. As was explained in the primary decision when considering if an applicant is a genuine temporary entrant it is necessary to have regard to what is known as Ministerial Direction number 69 and the issues in that direction.  They were detailed in your primary decision and they include

   ·your circumstances,

   ·the value of your courses to your future,

   ·your immigration history,

   ·your incentive to remain in Australia or return home,

   ·if you are using the student visa program to maintain ongoing residence in Australia and

   ·any other relevant matter.

9. It is not intended as a checklist but it is a guide for decision makers in considering an applicant’s circumstances as a whole in reaching a finding about whether or not an applicant satisfies the genuine temporary entrant requirements.  As I said, the role of the Tribunal is to take a fresh look at your application and to consider whether you are eligible for the visa.

10. You told the Tribunal you had read and understood the primary decision and we read from it and discussed it today in some detail.  That primary decision and the detailed references to the Genuine Temporary Entrant issues in Direction No. 69 put you on notice of the issues in your case.

11. Given it was the reason your application was refused, with the letter accompanying the hearing invitation we sent on 7 January 2019, it advised we would assess whether or not you met the genuine temporary entrant requirements and we asked you to provide a statement addressing the issues in Direction No. 69, and we provided you with a copy of that direction.

12. You did not respond and did not provide a statement about being a genuine temporary entrant, which the Tribunal finds unusual behaviour for someone appealing the decision to refuse an application because the delegate found you were not a genuine temporary entrant.

13. However, you and your agent say, “No, we did provide a statement a couple of weeks ago”.  And you referred to the document headed “Statement of Purpose”.  There is no record of that document having been received recently however, a document with that heading was received on 5 October 2018.  It provides some background and outlines your future plans but it does not address the issues generally in Ministerial Direction 69.  However, at today’s hearing you have answered a number of questions that have gone to those issues.

14. Before coming to Australia you completed a two year Diploma of Commerce and a two year Bachelor of Commerce.  And before coming to Australia you had been employed as a Senior Accountant. 

15. As I said, you arrived on a student visa and after a general English course you completed a Diploma of Management, Certificate IV in Business, an Advanced Diploma of Business that you said you studied until January 2015.

16. The situation was that we referred to the PRISMS records and it was put to you under 359AA when I provided you with a copy of those PRISMS records that that course, in fact, did not run to January 2015 but was completed on 25 September 2014.  And you agreed when confronted with the PRISMS records that that was when you completed the course.

17. Your next studies were when you commenced the Certificate III in Commercial Cookery in July of 2017, which means you had a study gap of some 10 months between those two courses.  When it was put to you that a study gap of that order created a breach of condition 8202 your answer was, “Yes, I was misled by my agent.  And, you know, I was enrolled in a Bachelor of Business but never started it and so I was misled by my migration agent”.

18. You then studied the Certificate III in Commercial Cookery, which you did for a year, then you did a Certificate IV in Commercial Cookery in which the Tribunal notes you were given credit transfers for 20 of the 33 units.  You then did a Diploma of Hospitality in which you completed 5 units and were granted credit transfer in 23 others.  You commenced an Advanced Diploma of Hospitality Management in November 2017, which you completed in December 2018.  You provided evidence of that yesterday and the Tribunal notes that in that course you completed 8 units having been granted credit transfers in 25 others.

19. So in the last 12 months you have done a course in which you have done 8 units a 1 year course that would normally expect a student to complete by doing 33 units.

20. Before that you did a course, which you completed 5 units, and before that you did a course where you did 13 units of 23 units.  So, as I said to you, the Tribunal does not consider your study program or progress to be that of a genuine student.

21. In the statement that you referred to titled “Statement of purpose”, which you claimed you had provided a couple of weeks ago, you said you intended returning to Pakistan to accomplish your goals.  It was unclear what your goals were.

22. Regarding your future plans, you provided conflicting options. You stated you intended to start your own hospitality business.  Another time you said that having done research and made enquiries you had received overwhelming responses to job opportunities in the hospitality market, particularly in the Capital Territory Region from different national and multinational companies.

23. We discussed that here today in some detail and you stated that it was your intention to go back and open a restaurant that seats 50 or 60 people serving breakfast, lunch and dinner.  When I asked you about the costs and the staffing of establishing and running the business and how it was all going to work, your answers were vague at best and led me to believe that you have not really done a lot of business planning for this restaurant.

24. But then perhaps that is not surprising because when I asked you about the option of getting a job you said that if you were offered a good job working in the Capital you would accept the job and that is what you would do. From your answers it is clear that you do not have any really fixed plans guiding your studies.

25. Yesterday the Tribunal received a Certificate of Enrolment, which you say you arranged two days ago. So on Tuesday you enrolled in a Bachelor of Tourism and Hospitality Management course, which runs for 20 months until November next year.

26. In your Statement of Purpose you said that you have property in Pakistan on which you plan to build a hotel.  You said your family have substantial assets and a handsome income and have assured you they will support you with your future plans.

27. Given your statement you are going to build a motel in a rented property rather than using your own property which was in the wrong part of town. You said you intended to build a restaurant and then you say that you had overwhelming responses in your enquiries for job offers which you would accept.

28. When I consider your personal circumstances coupled with what you have said in the statement, you say was provided only a couple of weeks ago in which you said you were studying the Advanced Diploma of Hospitality and Management and when you finish that  course you would return home to accomplish your goals. You have now completed that course but rather than return home you say that about a month ago you decided you would go on and do the Bachelor’s degree.

29. The Tribunal believes that having completed an Advanced Diploma and all the other studies you have done, which include a Bachelor of Commerce, Diploma of Commerce, Diploma of Management, Certificate IV in Business, Advanced Diploma of Business, Certificate III, Certificate IV and Diploma of Hospitality and Advanced Diploma of Hospitality Management you are adequately trained and resourced to return home and commence a business or accept one of the job offers you claim to have been given, which you say is what you would do if the job offer were available.

30. The Tribunal does not believe that your proposed course will add significant value to your career prospects but believes that you have enrolled in this course not for academic progression but rather as a way of maintaining ongoing residence in Australia.

31. When asked why you do not do your proposed studies at home you responded that you did not believe the courses were available.  We have today Googled those courses in Pakistan and it appears from a significant number of websites that there are seven courses available in Universities in Pakistan providing a Bachelor of Tourism and Hospitality.

32. So the situation is that you are requesting a visa to stay in Australia until at least December 2020, which would bring your time in Australia on temporary visas to more than eight and a half years.  While I accept that there are educational and career pathways that require extensive study I am not satisfied you have established your future goals or plans fall into that category.

33. The Tribunal finds it difficult to reconcile your extensive time that you have already spent and the time you propose to spend in Australia with your claim that you are a genuine temporary resident but rather believes you are seeking to use the student visa program to maintain residence in Australia.

34. You have provided evidence and told the Tribunal that you work two jobs as a cook or a chef.  One of them you said you worked 10 to 15 hours a week and the other one you provided a statement that says you work 20 plus hours and the Tribunal believes that that is also referring to weekly.  So the evidence indicates you have substantial ongoing and work and income.

35. You have family back home, including your wife, who I think you said you married in October 2015, and other members of your immediate family, which may provide some incentive to return, but you appear settled in Australia, as I say, with a longstanding history of work and while you say it is your intention to return home having been here for six and a half years you now say you wish to remain longer.  Your words and your actions seem to be different.

36. The Tribunal believes your current circumstances present as a strong incentive for you to remain in Australia and does not believe that you have provided evidence of any significant incentive to return, which outweighs the issues we have discussed and your immigration history.

37. So in considering your circumstances as a whole, the Tribunal is not satisfied that you are a Genuine Temporary Entrant and therefore finds you do not meet clause 500.212.  The fact you have previously breached condition 8202 leaves me with no confidence that you would abide by conditions that may be placed on a future visa.

38. I am not satisfied you are a genuine student who intends to stay in Australia temporarily.  I therefore find you do not meet clause 500.212 and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

39. The Tribunal affirms the decision under review.

    Tim Connellan
    Member