Mahmood (Migration)

[2018] AATA 2183

Mahmood (Migration) [2018] AATA 2183 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kashif Mahmood

CASE NUMBER:  1621839

DIBP REFERENCE(S):  BCC2016/3345507

MEMBER:Warren Stooke AM

DATE:26 April 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 26 April 2018 at 5:46pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Long period of stay in Australia – Maintaining residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
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 on 9 December 2016 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 9 October 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 applicant had only completed VET courses over a period of 7 years and lacked progression; had transitioned from various VET sector courses to unrelated disciplines; had not clearly demonstrated the benefit and value of the courses studied; had remained onshore for an extended period time and overall weighing up all the relevant factors did not demonstrate that the applicant was a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 compliance with cl.500.212 and specifically the status of the applicant as a genuine temporary applicant for the purposes of study.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. 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.

9. 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.

10. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate. In this regard, the applicant provided a copy of the decision to the Tribunal as part of the application, which was confirmed by the applicant.

11. At the commencement of the hearing the Tribunal confirmed that the applicant had provided the Tribunal with a copy of the delegate’s decision of 9 December 2016 with the attendant application, but did not have a copy with him for the purposes of the hearing. The applicant confirmed that he had read the delegate’s decision and that he understood the content of the decision.

12. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant met the criteria required for the grant of a visa. He stated that the delegate believed he was not a genuine student through the length of time undertaking studies and had changed courses.

13. The applicant is a 37 year old from Pakistan who was granted a visa (TU 572) offshore on 11 November 2008 and arrived in Australia on 14 January 2009 for the purposes of undertaking study in the VET sector. The applicant has parents and a wife and two children in Pakistan, who are not with the applicant in Australia. The applicant gave evidence that he also has a brother in Sweden, who is providing support to the applicant.

14. The applicant advised the Tribunal that he intends to undertake a Diploma of Accounting, which the Tribunal notes will commence on 21 May 2018 and will be undertaken at the Victorian Institute of Culinary Arts and Technology. In this regard, the delegate’s decision notes that the previous course of an Advanced Diploma of Leadership was due to complete on 13 October 2017. Accordingly, the applicant has not been engaged in any course of study since October 2017 to the present time of hearing.

15. The applicant gave evidence to the Tribunal that he was not currently engaged in any study and had sought to be employed with an IT Company in Cairns utilising his IT education history in software use in mobile computing. He stated that he would be able to use his expertise to give better information and solutions.

16. The applicant confirmed to the Tribunal that he had applied for a 185 visa and that his strategy was to build a business plan to enable the building of mobile software solutions. This career choice was taken over the alternative of hospitality, which the applicant described as “no good “given the low quality wages. As such, he gave evidence that he now focuses on IT services.

17. The applicant advised the Tribunal that he used to work as a chef in a 5 star hotel in Pakistan and with that background could see the potential to apply IT to the running of the business across various departments.

18. The Tribunal referenced the delegate’s decision and noted that the applicant had participated in courses relating to Hospitality, Security Operations, Management, Information Technology, Marketing and Leadership, and now intends to pursue studies in Accounting. The applicant advised the Tribunal that there was a consistent theme through the chosen courses of study, whereby the common thread was to connect the relationship through IT.

19. The applicant gave evidence that he had had poor guidance when commencing a career in Hospitality by his parents, whom he advised were uneducated. He explained, this is why he initially studied a Bachelor of Arts degree in social work, which he felt would not help him a lot.

20. The applicant gave evidence that he hopes to return to Pakistan at the end of his course, but this was also dependent on the job visa, if issued.

21. The applicant, in relation to return trips to Pakistan, stated that he had returned three times since arriving in Australia and that he had married three years ago and now has 2 children (3 years old and 18 months old). He also confirmed that his wife had never been to Australia.

22. The applicant gave evidence that he is working part-time as a taxi driver to support himself and works between 10 and 12 hours per week, where he can earn between $120-130 per shift and sometimes $200 during busy periods.

23. The applicant stated that it was his aspiration to complete his studies and “start my job”. In this regard, the applicant explained that he planned, in the future, to open a software chain in Pakistan and that he has a business plan.

24. The Tribunal asked the applicant if it was his ‘motivation to remain in Australia permanently’ and he responded that he wanted to finish his accounting and “start my job in Australia”. He also stated that it was his intention to finish a two year contract and then go back to Pakistan.

25. 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).

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

26. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for the purposes of study for the following reasons:

    a.The applicant has been in Australia for 9 years and has undertaken a progressive series of low cost and short VET courses without progression to the Higher Education sector, despite having a Bachelor’s status from Pakistan;

    b.The courses undertaken by the applicant have a vague correlation of relevance and suggest that the primary reason for the courses undertaken was to maintain residency in Australia for purposes other than study;

    c.The applicant completed an Advanced Diploma in Leadership in October 2017 but has not enrolled in any other course pending his intended Accounting course in May 2018. Seven months without study suggests that the applicant is maintaining residency in Australia for purposes other than study;

    d.The applicant has sought to obtain a 185 Visa with an IT company, which involves employment in Cairns, in a Mobile IT business, with a technical base. This does not accord with the expected behaviour of a genuine temporary entrant for the purposes of pursuing study;

    e.Whilst the applicant has direct family in Pakistan, including a wife and two children the extended period of stay in Australia and the attempts to secure an employment visa, raises concern with the Tribunal that the motivation is to obtain permanent residency.

27. The Tribunal has considered the criteria pertaining to Direction 69 in assessing the application and is satisfied from the weight of evidence and the material submitted that there are no circumstances that have identified a particular need for consideration in terms of  an adverse impact on the applicant pursuant to the criteria contained in Direction 69.

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. 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.

30. 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

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

    Warren Stooke AM
    Member