Khan (Migration)

[2018] AATA 2952

Khan (Migration) [2018] AATA 2952 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Salman Khan

CASE NUMBER:  1705982

HOME AFFAIRS REFERENCE(S):         BCC2016/4260717

MEMBER:Stephen Witts

DATE:25 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 25 June 2018 at 1:56pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa  – Genuine applicant for entry and stay as a student  – Applicant has never been able to complete a higher level bachelor degree – Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 6 March 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 December 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 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 genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 20 June 2018 to give evidence and present arguments.

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

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 intends to stay in Australia temporarily.

   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. At the hearing the Tribunal had a discussion with the applicant regarding issues for consideration outlined in Ministerial Direction 69.

    Background

12. According to the Delegate’s Decision Record, a copy of which was provided to the Tribunal, the applicant arrived in Australia from Pakistan on 7 July 2014 holding a TU573 student visa. The delegate refused the applicant’s application for another student visa on 6 March 2017.

13. According to the applicant he is currently enrolled in a Bachelor of Tourism and Hospitality Management which commences on 16 July 2018 and is due to finish on 10 July 2020.

14. According to the applicant’s evidence, and information from the delegate’s decision record, since coming here in 2014 the applicant has had the following enrolments: general-purpose English which was completed in December  2014, a Bachelor of Business (Accounting) which was cancelled in 2014, a Certificate III in Commercial Cookery completed in August 2016, a Certificate IV in Commercial Cookery completed in March 2017, a Diploma of Hospitality completed in August 2017, and a Bachelor of Business (Accounting) cancelled in 2017.

15. According to the applicant’s evidence he has never been able to complete a higher level bachelor degree and has only completed cookery and hospitality VET courses.

    Circumstances in home country

16. The applicant testified that he finished high school back in his home country and then went on to successfully complete a Bachelor of Commerce.

17. The applicant testified that he decided to come to Australia to study after considering a number of courses and many different countries including Germany but decided to come here.

18. The applicant stated that he has a mother and five brothers back in his home country. He also has cousins in Germany. He stated that his family had business and commercial property back in his home country. He stated that he keeps in regular contact with his family via phone and Viper. He testified that he had no problems maintaining his personal relationships back in his home country from here in Australia. The Tribunal is concerned with this evidence as it indicates that the applicant is happy here in his current situation and does not genuinely intend to stay in Australia temporarily.

19. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or 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.

    Circumstances and study in Australia and the value of the proposed course to the applicant’s future

20. The applicant stated that he rents in Glenroy with friends, has no work at the moment but is seeking to find work in hospitality and that his family are assisting him in paying for his studies.

21. The applicant stated that since his arrival here in 2014, a period of four years, he has been back to his home country once, in 2016. He has also travelled to Dubai. The Tribunal is concerned by this evidence as it indicates that the applicant is comfortable in his current situation here and does not intend to remain in Australia temporarily.

22. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

23. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

24. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

25. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

26. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

27. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

28. The applicant did not ask for an adjournment but spent a few minutes reviewing his PRISM material with his representative.

29. The Tribunal asked the applicant to confirm that he had not been able to successfully study any courses at higher education bachelor level and that the courses that he had successfully completed were his commercial cookery and hospitality lower-level VET courses. The applicant confirmed that this was the case and acknowledged that he had tried on several occasions to study for his Bachelor of Business in 2014 and again in 2017 but had been unable to proceed with his studies. The Tribunal is concerned by this evidence as the applicant is now enrolled to study another bachelor level course, that is a Bachelor of Tourism and Hospitality Management, which will take him until July 2020 to actually complete should he proceed with that course.

30. The applicant testified that he had had problems completing his business and accounting qualification for various reasons including that at that time he had “lots of hospitality work”. He submitted that at some point during this time he decided that he wanted to do cooking. The Tribunal is concerned by this evidence as it is noted that the applicant was asserting that he had already successfully completed a Bachelor of Commerce before coming here on the basis that he would continue to study at higher education level. The Tribunal finds that the applicant is using the student visa system to maintain ongoing residency in Australia and does not genuinely intend to stay in Australia temporarily.

31. The applicant’s representative, on behalf of the applicant, stated that the applicant wishes to study and finish his current enrolment beginning in July and then go to Germany after his course completes to be with his cousins. He also acknowledged that, in accordance with the Delegate’s Decision Record that the applicant had breached his visa by dropping back to lower-level VET courses.

32. The applicant in his GTE statement to the delegate (delegates file folio 20-to 21) stated that he was “highly motivated and ambitious in pursuing my bachelor degree in Australia. By studying in a bachelor program, I hope to extend my vision and improve my business knowledge. After the completion of my bachelor program, I plan to return to Pakistan and set up a restaurant business”. The Tribunal is concerned by this evidence as the applicant has enrolled in at least three bachelor level higher education courses since 2014 without any success whatsoever.

33. On the basis of the above, the Tribunal has significant concern that the value of the study now proposed, a Bachelor of Tourism and Hospitality, where the applicant has already been unable to progress several enrolments at higher education level, does not lie outside Australia, but in the grant of a further student visa for the purposes of continued ongoing residency in Australia. The applicant has already been here for four years without having significantly progressed his stated study plan and the Tribunal has no confidence that the study now proposed will be completed and therefore has no confidence that the applicant intends genuinely to stay in Australia temporarily.

34. 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).

    Conclusion on cl.500.212

35. 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.

36. 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

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

    Stephen Witts
    Member