Khan (Migration)

[2018] AATA 2622

Khan (Migration) [2018] AATA 2622 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ahmed Ali Khan

CASE NUMBER:  1621676

DIBP REFERENCE(S):  BCC2016/2157688

MEMBER:P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 May 2018 at 11:13 am (VIC time)

DATE OF WRITTEN RECORD:                13 June 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 June 2018 at 4:49pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a genuine applicant for entry and stay as a student – Multiple unrelated studies undertaken – Vague evidence of future plans - Limited value of current studies – Limited incentives for the applicant to return to home country – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223(1)(a)

THIS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 November 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 7 May 2018 the Tribunal made an oral decision. The following are the Tribunal’s written reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied to the Department of Immigration for the visa on 24 June 2016. The delegate decided to refuse to grant the visa on 30 November 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

4. The delegate refused to grant the visa because the delegate determined that the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because he was not satisfied that the applicant intended to genuinely stay in Australia temporarily.

5. The applicant, Mr Khan, appeared before the Tribunal on 7 May 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The applicant’s registered migration agent was provided with an opportunity to address the Tribunal and he made both written and oral submissions.

7. The applicant provided a copy of the delegate’s decision record to the Tribunal in applying for review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

10. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

11. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

12. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

13. The applicant first arrived in Australia on 30 January 2011 and since that time has been granted two further student visas. Upon arriving in Australia, the applicant enrolled in vocational education at the Southern Cross Education Institute where he first completed a Certificate IV and Diploma of Business. Following this, he transferred to ALTEC College Australia where he completed a Certificate IV in Accounting. The applicant also provided evidence of completion of a Certificate IV in Information Technology and Networking, Certificates III & IV in Commercial Cookery and a Diploma of Hospitality.

14. Significantly, prior to coming to Australia in 2011, the applicant had already completed a tertiary degree, a Bachelor of Commerce at Karachi University, graduating in April 2010. Certificates provided to the Department evidence that the applicant has also studied an electronics technology course including applied mathematics, applied physics applied chemistry at diploma level in Pakistan. Earlier, he completed secondary school (and provided evidence of this to the Tribunal also).

15. The applicant gave evidence that he lives in Melbourne with friends in share accommodation. The applicant’s ill mother (discussed below) and two brothers remain in Pakistan. His father passed away in 2004. Since arriving in Australia in 2011, the applicant has returned to Pakistan on only one occasion. The applicant gave evidence that he is in contact with his family and friends in Pakistan via the internet on a daily basis.

16. The applicant gave evidence that he completed a security guard course approximately four years ago and holds a current security guard license in Victoria. Other than his oral assertions, the applicant has not provided evidence of completion of the security course or holding a current security license, nevertheless, the Tribunal accepts the applicant’s evidence in relation to this.

17. The Department’s file also includes documentation evidencing the support of the applicant’s brother in Pakistan (mostly responding to an earlier request from the Department for evidence of financial support).

18. The applicant told the Tribunal that he had previously worked in banking, operations coordination and internal auditing before coming to Australia. He told the Tribunal that he was employed in the corporate sector in Pakistan for three years and worked for at least part of that time on a commission-based structure. When questioned specifically about his income, the applicant was either unable or unwilling to tell the Tribunal how much he earnt in Pakistan.

19. The applicant told the Tribunal that his plan for the future is to set up his own hospitality business, either in Pakistan or the Middle East. He told the Tribunal how he was born in the Middle East and has had the idea of setting up a hospitality business in Dubai. The applicant told the Tribunal that he considered that in order to operate a hospitality business he needed to first train as a chef. The Tribunal interposes here to observe that the applicant has already completed commercial cookery qualifications in Australia. He told the Tribunal that he is planning to work with his brother and has “many investments” already in Pakistan. Overall, the Tribunal considered the applicant’s future plan vague and unconvincing. In circumstances where the applicant has invested many years abroad supposedly pursuing education and training to be ready to start a business, this was puzzling. 

20. The applicant advised the Tribunal that he is presently enrolled in an Advanced Diploma of Hospitality at the Australian Education Academy Pty Ltd. He advised that he was only recently enrolled in this course, on 26 March 2018, by his consultant. He told the Tribunal that he expected to complete this course by November 2018.

21. In his oral testimony the applicant told the Tribunal that he was enrolled in the same course, the Advanced Diploma of Hospitality, at the Sunshine College of Management but that his enrolment was cancelled by the institution on 5 February 2018 due to his lack of attendance.

22. The Tribunal observes that the applicant provided a confirmation of enrolment certificate which evidences that he was enrolled in the same course at the Australian Institute of Trades (trading as Institute of Hotel Management Australia) between July 2017 and January 2018.

23. The applicant’s registered migration agent told the Tribunal that he considers the current course to be ‘invaluable’ to the applicant’s future.

24. The Tribunal has had regard to an undated document entitled ‘statement of purpose’ provided by the applicant to the Department in support of his visa application. In this document, the applicant describes his technology networking studies in Australia (referred to above) as “a narrow field of information technology” and claims to want to establish a food business.

25. The Tribunal has also had regard to a written submission provided by the applicant’s registered migration agent on 3 May 2018 in which he asserted that the applicant has been under “immense stress and distress” about his own medical issues and his mother’s health. The Tribunal has considered the documentation attached to the 3 May 2018 submission. The Tribunal acknowledges that the applicant sought treatment from Western Health earlier this year in relation to a kidney complaint.

26. The applicant told the Tribunal that his mother was diagnosed with cancer in 2017 and that he was informed of this by his uncle in around November 2017. He told the Tribunal that his mother is presently undergoing chemotherapy and that he was unable to study for a period after he was informed of her situation. He told the Tribunal that he continues to be distressed by her situation.

27. The Tribunal questioned the applicant about his employment experience in Australia. The Tribunal considered that the applicant was evasive and selective in his answering so as to appear interested in the hospitality field but, upon further questioning from the Tribunal, volunteered that he worked in a casual security role at licensed premises in Brunswick, Victoria.

28. The Tribunal questioned the applicant as to whether or not he was thinking of pursuing further study after the Advanced Diploma of Hospitality. The applicant vacillated in responding, being careful not to rule out the possibility of further study.

29. Adopting the procedure in section 359AA of the Act, the Tribunal explained to the applicant that it was in possession of the applicant’s records from the Provider Registration International Student Management (PRISMS) system database, together with the applicant’s international movement records. The Tribunal provided the applicant with a copy of his three-page PRISMS enrolment summary. The Tribunal explained to the applicant that this information would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal explained the relevance of the information and the consequences of the Tribunal relying upon the information. The Tribunal gave the applicant the opportunity to request additional time before commenting or responding.

30. The applicant advised the Tribunal that he understood what the information put to him in accordance with section 359AA of the Act was, how it was relevant to the review and the consequences of the Tribunal relying on the information. The applicant did not seek additional time and elected to respond during the course of the hearing. In relation to his movement records, and having only returned to Pakistan on one occasion, the applicant answered that he did not want to visit Pakistan ‘unnecessarily’. In relation to his enrolment records, the applicant sought to explain what he perceived to be irregularities in the summary provided and impressed upon the Tribunal that he had changed providers when he and his mother were ill and also when courses became unavailable.

31. The Tribunal accepts that the applicant and the applicant’s mother have provided evidence of recent medical issues. The Tribunal considers that this may go some way in explaining in part the applicant’s failure to progress his studies at times, but is concerned that the applicant may be exaggerating the impact on his ability to study.

32. Considering the applicant’s circumstances as a whole, including that the applicant has now been living in Australia for more than 7 years, the Tribunal is of the view the applicant is using the student visa program to circumvent the ordinary migration program and to maintain ongoing residence in Australia. The Tribunal considers that the applicant has done this by enrolling in a series of vocational education courses (ranging from general business, to accounting, to computer networking, to cooking and now to hospitality).  

33. The Tribunal does not accept that the applicant’s personal ties to Pakistan are a distinct incentive for him to return; on his own evidence he has maintained close relations with those abroad for many years through the internet. The Tribunal only has the applicant’s bare assertions that he wants to return to Pakistan to start a business and get married. The Tribunal found the applicant’s assertions unconvincing.

34. Considering the numerous qualifications that the applicant has, including the Bachelor of Commerce degree he completed prior to coming to Australia, the Tribunal does not accept that the course which the applicant now proposes, the Advanced Diploma of Hospitality, will significantly assist the applicant to obtain employment or improve his employment prospects in Pakistan. That is, when considered alongside the qualifications that the applicant already holds, the Tribunal considers the value of the proposed course to the applicant’s future is limited.

35. The applicant’s own conduct in proposing further stay to study where the cost of completing course, in time, fees and lost income, exceeds its value to his future suggests that he will not yield to the array of claimed incentives he has to leave Australia, including the presence of his ill mother in Pakistan, but rather intends to stay on in Australia.

36. The Tribunal considers that the applicant’s degree level education from Pakistan, when combined with the skills and knowledge acquired from technical business and cookery training already undertaken, combined with the completed Diploma of Hospitality, provide the applicant with sufficient skills to handle the hands-on aspects of hospitality businesses, the management aspects of hospitality businesses and the ability to analyse the industry.

37. It is the applicant’s claim that he has always intended to stay in Australia temporarily and he continues to have that intention. If that is and was so, the Tribunal finds the applicant would have departed Australia to set in motion his claimed plan to open a hospitality business at the end of his Diploma of Hospitality, or even before, and that he would not have proposed a further study plan.

38. The Tribunal has considered the financial evidence before the Tribunal. It is also a matter of common knowledge that there is a significant economic disparity between Pakistan and Australia. The Tribunal considers that the applicant’s economic circumstances in Australia, particularly his ability to earn Australian award wages, even part-time, present as a significant incentive for him not to return to Pakistan where he would have a more limited earning capacity.

39. There is nothing before the Tribunal to indicate that the applicant has had visa issues in any other country.

40. There is no significant relevant evidence regarding the following factors indicated by Direction 53 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.

41. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

42. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

43. The Tribunal affirms the decision under review.

    P. Wood
    Senior Member