Masood (Migration)

[2019] AATA 3078

Masood (Migration) [2019] AATA 3078 (11 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kibria Masood

CASE NUMBER:  1733058

DIBP REFERENCE(S):  BCC2017/3554105

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 June 2019 at 10:46 am (VIC time)

DATE OF WRITTEN RECORD:                25 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 25 June 2019 at 8:59am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met – unsatisfactory course progress – maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 8 December 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 11 June 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. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1733058 in relation to an application for review brought by Kibria Masood.  The applicant is a citizen of Pakistan. He seeks review of a decision made by a delegate of the Minister on 8 December 2017.  That decision refused to grant him a visa.  He had applied for that visa being a student visa on 28 September 2017.

4. The applicable Regulations classify this type of student visa as a student temporary class TU subclass 500 visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate by section 65 of the Migration Act. If granted a student visa permits a non-Australian citizen to enter and remain in Australia to study fulltime on a temporary basis.

5. In this case there is only one applicant and he must satisfy the primary criteria as set out in the Regulations. The student visa was refused in this case because the delegate found the applicant did not satisfy the requirements of clause 500.212 of schedule 2 of the Migration Regulations. The delegate did not consider him to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the tribunal when the applicant lodged his review application on 28 December 2017.

6. The applicant appeared before the tribunal today to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter of the Urdu and English and languages.

7. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 of the Regulations. The primary criteria in clauses 500.211 to 500.218 must be satisfied by the applicant. Whether an applicant satisfies the criteria is to be determined at the time the tribunal’s decision is made. A student visa application must be founded on evidence of the applicant being currently enrolled in one or more registered courses of study. An applicant must be enrolled in one or more courses run by a registered course provider and declare an intention to complete these courses in the event of a student visa being granted.

8. In this case the applicant advanced his application before the tribunal on the basis that he wishes to study for firstly a Certificate III in Light Vehicle Mechanical Technology, then a Certificate IV in Automotive Mechanical Diagnosis, followed by a Diploma of Automotive Technology.  In support of the applicant he produced three confirmation of enrolment documents known as COEs generated by the Department of Education and Training Provider Registration and International Student Management System known as PRISMS.

9. The first confirmation of enrolment being reference number A50AFF79 was generated on 29 January 2019.  As at that date it shows the applicant was enrolled in a Certificate III course with a commencement date of 18 February 2019 and anticipated completion of 17 February 2020.  The applicant stated he was currently enrolled and making progress in relation to that course and he produced evidence from the course provider that verified that assertion.

10. The second confirmation of enrolment bearing reference number A50E1345 was also generated on 29 January 2019 and it shows the applicant was enrolled in a Certificate IV Automotive Mechanical Diagnosis.  That course commences following the completion of the Certificate III.

11. The applicant produced a third confirmation of enrolment, which again is another separate confirmation of enrolment referring to the Diploma course, which starts following the completion of the Certificate IV.

12. The tribunal is satisfied that he meets the criterion contained in clause 500.211, which pertains to a current enrolment. However, the critical issue in this case is whether the applicant satisfies the primary criteria contained in clause 500.212. That clause states for a student visa application to be successful the applicant must be a genuine applicant for entry and stay as a student.

13. The Regulations specify two elements of a genuine student visa applicant.  First, a genuine applicant is one who intends genuinely to stay in Australia temporarily.  The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently, and that intention must be unqualified.  This requirement reflects the temporary nature of being a student.

14. Secondly, a genuine applicant is one who intends to comply with any conditions to which the visa may be subject.  There are several conditions attaching to student visas.  The most important conditions oblige the visa holder to remain enrolled in a course of study and to make satisfactory progress in their studies.  The tribunal must consider the applicant’s declared intentions as well as other more objective evidence that may tend to support or undermine his claims.

15. The Regulations state that consideration must be given to the applicant’s circumstances, their immigration history, and their record of complying with conditions of any previous visas.  The tribunal must also have regard to Direction 69 that was issued by the Minister on 1 July 2016.  Direction number 69 elaborates upon the regulatory criteria.  The specific considerations referred to in both the Regulations and in Direction 69 are not exhaustive.  The tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student.

16. The applicant stated that his reasons for studying these three proposed courses was that eventually after finishing he wants to return to his home country and open his own automotive shop.  He stated that upon completing these courses he intends to depart Australia.  On the face of these express statements the applicant has demonstrated what appears to be an unqualified intention to remain in Australia temporarily as a student.

17. However, the applicant must also demonstrate to the tribunal’s satisfaction that he intends to comply with any conditions to which the visa may be subject.  As mentioned above, several conditions attach to all student visas and I am going to list the most important of these conditions.  He must remain enrolled in a registered course of study.  He must make satisfactory course progress.  He must attend classes.  And in the event of a decision by him to change his enrolment he must not downgrade his course to a lower level.

18. There is particular difficulty associated with the present application on review and that is because the applicant originally arrived in Australia in April 2014 on another student visa that had previously been granted.  He arrived on 22 April 2014 on a 573 visa, which was valid for the period until 30 September 2017.

19. That visa had been granted on the basis that the applicant was enrolled in and would successfully complete a number of courses in succession over that three and a half year period.  Those courses included an English course lasting about 12 weeks following which he would then commence a Diploma of Hospitality and Management following which he would commence an Advanced Diploma course and that would then lead to a Bachelors course.  That is why he was granted a three and a half year visa – to complete all of those courses.  But according to the applicant’s evidence today he only completed the English course.

20. Following the completion of the English course after 12 weeks, he remained in Australia on the student visa and he effectively achieved nothing in terms of the attainment of further qualifications.  For three years he did not do anything by way of study although, as noted in the delegate’s decision and in evidence today, the applicant did attempt some commercial cookery courses but those did not amount to the attainment of any qualification either.

21. The tribunal asked what he did for the three years if he was not studying.  Initially he said that he was depressed and home-sick and having to deal with a lot of negative people from his own community in Australia.  He said that he was having a bad time with the people he was house sharing with.  From further inquiry by the tribunal he admitted that he was working about 20 hours a week by driving a taxi.

22. But from the lack of any meaningful success in terms of educational pursuits this is a significant factor that weighs heavily on the tribunal’s deliberations.  Apart from passing the 12 week English course he did not effectively achieve anything that he was supposed to in accordance with the conditions of his original student visa.  On that basis the tribunal has doubts as to his true intentions to comply with any conditions of a student visa that were to be granted now.  It is an appalling history. The tribunal doubts that he will comply with the condition of any student visa granted that obliges him to remain continuously enrolled in a registered course of study.  The tribunal doubts his asserted intention to make satisfactory course progress in relation to the courses he now proposes.

23. To counter these concerns the applicant produced an academic transcript of the Certificate III that he is currently enrolled in.  The tribunal accepts that he has made satisfactory progress in that Certificate III since he started it in February of 2019.  However, that is a very small window from which to draw reasonable inferences as to the likelihood of his long term success in that certificate. The bigger window from which the tribunal can draw reasonable inferences is that which occurs prior to him actually starting this course this year.  In the almost five years that he has been here, for the purported reason of being a student, he has achieved very little that one would expect a student to achieve.

24. The applicant’s case in this respect is not assisted by what he did after his student visa application on review was refused. After it was refused in late 2017 the applicant had an opportunity to demonstrate that he was a genuine student by getting enrolled and making satisfactory progress.  So for the entire 2018 year while he was awaiting this pending review before the Administrative Appeals Tribunal he could have enrolled in and studied.  That would have gone some way to demonstrate to the tribunal’s satisfaction that he was indeed a genuine student but he chose not to do so.  He said he was depressed but he still chose to work 20 hours per week.  It defies belief that he chose not to study to demonstrate a genuine intention to remain in Australia as a student.  And so on this basis it is very difficult to discern from that conduct a genuine intention to be a student.

25. I have considered the value of the proposed courses that would be added to the applicant’s future career.  I accept the qualifications that he proposes would be of some value to him upon his return to Pakistan.  But how the applicant actually perceives that value is undermined by the fact that he only commenced these courses earlier this year.  I have considered the applicant’s circumstances in his home country.  He stated that he is single and that his parents and siblings remain in Pakistan.  He seems to communicate with them infrequently.  I do not consider that he has sufficiently strong family ties such that he has a strong incentive or any incentive of significance to return to his home country.

26. I note military service or issues relating to civil or political unrest do not seem to be a significant deterrent operating to deter him from returning to his home country.  Overall I do not think the circumstances of the applicant are such as to operate as a significant incentive for him to return to his home country.

27. I note the applicant’s circumstances in Australia.  He has been here approximately five years and admitted that he is just starting to enjoy Australia.  I accept that he probably does not have significant family ties here.  However I note that there is an obvious significant economic disparity between Pakistan and Australia and that the applicant will be enjoying the economic benefits that the Australian quality of life has to offer.

28. Overall in consideration of all of the above matters the tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia as a student.  In case number 1733058 the tribunal affirms the decision not to grant the student visa.

    DECISION

29. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member