MEHMOOD (Migration)

[2018] AATA 4558

MEHMOOD (Migration) [2018] AATA 4558 (29 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD ARSLAN MEHMOOD

CASE NUMBER:  1611110

DIBP REFERENCE(S):  BCC2016/1397735

MEMBER:Michael Ison

DATE:29 August 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 29 August 2018 at 3:38pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training sector) – genuine temporary entrant criterion – failed to maintain his enrolment in an approved course – maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 8, Schedule 1, Schedule 2, cl 572.223

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 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 is Mr Muhammed Arslan Mehmood, who is a 26 year old Pakistani national.

3. Mr Mehmood applied for the visa on 8 April 2016. The delegate decided to refuse to grant the visa on 13 July 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 was not satisfied that Mr Mehmood met the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations as the delegate found Mr Mehmood had changed his field of study from marketing to painting and construction to electronics and engineering indicating that Mr Mehmood is using the Student visa program to maintain ongoing residence in Australia. The delegate also noted that Mr Mehmood had a significant study gap between August 2015 and January 2016 and failed to maintain his enrolment in an approved course.

5. Mr Mehmood appeared before the Tribunal on 22 January 2018 to give evidence and present arguments.  

6. Mr Mehmood was represented in relation to the review by his registered migration agent, Ms Verma Sanmati of Clothier Anderson Immigration lawyers. Ms Sanmati attended the Tribunal hearing. Ms Sanmati provided a submission to the Tribunal on 22 January 2018 that was of considerable assistance to the Tribunal in the conduct of its review. As will become evident below, the Tribunal accepts many of the submissions made by Ms Sanmati on Mr Mehmood’s behalf.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to Mr Mehmood’s current proposed course of study, the relevant subclass in this case is Subclass 572 Vocational Education and Training sector.

9. The issue in the present case is whether Mr Mehmood 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)…

10. In considering whether Mr Mehmood 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.

11. 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.

    Applicant’s circumstances in their home country

12. Mr Mehmood told the Tribunal he is the eldest of three children, with his parents and younger brother and sister living in Pakistan. Mr Mehmood’s sister is in college and his brother had just started his intermediate year at the time of the hearing.

13. Mr Mehmood’s father works as a civil employee for the Pakistan Ministry of Defence which allows the family to live comfortably in Pakistan. Mr Mehmood’s father is due to retire next year at age 60 and Mr Mehmood told the Tribunal it is typical for the eldest son to then be responsible for financially supporting his birth family. Mr Mehmood says his father will not have enough savings to support their family and will need Mr Mehmood’s assistance.

14. The Tribunal finds that Mr Mehmood’s circumstances in his home country provides some incentive for Mr Mehmood to return home, but the Tribunal gives this little weight as Mr Mehmood had not acted on that incentive because at the time of hearing Mr Mehmood had not returned to Pakistan since arriving in Australia in 2013. 

15. Mr Mehmood is the first and only child of his parents to study overseas.

16. Mr Mehmood married Ms Hla Ya Min Phyo (Ms Phyo) in Australia on 18 June 2017 and provided a copy of their certificate of marriage to the Tribunal.[1] Ms Phyo is in Australia on a Student visa studying nursing and is a Myanmar national.

    [1] Tribunal file, folio 37.

17. The Tribunal acknowledges that it is typical for the eldest male child to provide financial support to their birth family when their parents stop working, but the Tribunal does not accept that Mr Mehmood needs to return to Pakistan to do this. Mr Mehmood told the Tribunal that when he and Ms Phyo complete their studies they will live in either Pakistan or Myanmar to support their respective birth families.

18. Mr Mehmood’s representative submitted that Mr Mehmood’s father’s employment allows the family to live comfortably in Pakistan whilst Mr Mehmood told the Tribunal the family will need his assistance when his father has to retire at age 60. These are not contradictory statements as the Tribunal accepts that the standard of living in retirement is often different to that enjoyed when working, but the Tribunal was not convinced by Mr Mehmood’s evidence that there is a compelling need for him to return to Pakistan given the family’s apparently comfortable financial status, Mr Mehmood having told the Tribunal that neither his nor Ms Phylo’s parents currently have any significant health issues and Mr Mehmood not having been home since January 2013.

19. In these circumstances, the Tribunal finds that Mr Mehmood’s incentive to remain in Australia as explained below, including being with his wife, outweighs the incentive Mr Mehmood has to return to Pakistan upon the completion of his studies. This causes the Tribunal to doubt that Mr Mehmood is a genuine temporary entrant into Australia for stay as a student.

20. The Tribunal does not have any information before it that there are any circumstances such as the ongoing political and civil unrest in Pakistan, military service commitments or similar that would act as a significant or any disincentive to Mr Mehmood returning to Pakistan. Mr Mehmood’s evidence is that he will leave Australia upon the completion of his studies.The Tribunal did not find Mr Mehmood’s evidence very convincing in this respect. Mr Mehmood expressed his plan in very general terms including being unsure whether he and Ms Phylo, when she has finished her studies after Mr Mehmood is due to complete his studies, will return to Pakistan or Myanmar.  

    Applicant’s circumstances in Australia and the value of their course to their future

21. Mr Mehmood arrived in Australia on 17 January 2013. As noted above he married Ms Phyo on 18 June 2017. Mr Mehmood told the Tribunal Ms Phyo is 23 years of age and is studying a Bachelor of Nursing in Launceston, Tasmania due to health issue with asthma. At the time of hearing, Ms Phyo had completed a year of study according to Mr Mehmood in what is usually a three year course, although it can be done as a fast track course in two years.

22. Mr Mehmood told the Tribunal Ms Phyo’s parents in Myanmar are elderly and she has two younger brothers, one of whom is in Australia studying automotive and the other who remains in Myanmar.

23. Mr Mehmood lives in a house in Chadstone with two others and they share the rent equally.

24. Mr Mehmood has an extensive work history in Australia in part time and often short term employment. Mr Mehmood told the Tribunal he commenced with a marketing job in 2013, worked as an Australia Post driver in 2014 for a month before he overslept and was dismissed, was not employed for over six months, then worked as kitchen hand at a restaurant in Brighton later in 2014, then had a six week job early in 2015 delivering the White Pages, was not employed again for over six months, then worked for Yarra Trams toward the end of 2015 until August 2016, then was not employed between August 2016 and January 2017. Mr Mehmood has recently worked for ISS Australia, a facility services provider, on Metro Rail.

25. Mr Mehmood’s representative submitted that he has worked for ISS since late 2015 and has maintained this employment[2]. Whilst this is different to Mr Mehmood’s evidence to the Tribunal, the Tribunal accepts Mr Mehmood may not have been able to accurately recall the specific dates and durations of his employment with various employers during his time in Australia although he did give evidence later in the hearing that he was dismissed from ISS when he could not attend work for a period due to being unwell and then subsequently did not attend after that for a short period when his employer expected him to.

    [2] Tribunal file, folio 79.

26. There is no evidence before the Tribunal that Mr Mehmood worked more than the allowed 40 hours per fortnight under his Student visa. Mr Mehmood told the Tribunal he can earn more in Australia than he expects to earn in Pakistan but that he must return to Pakistan anyway to assist in supporting his family and his wife’s family in Myanmar. The Tribunal gives Mr Mehmood’s evidence about needing to support his family little weight as at the time of hearing Mr Mehmood had not returned to Pakistan for five years and Mr Mehmood’s parents are not elderly or unwell with specific care needs.

27. The Tribunal finds that Mr Mehmood has a well-established and settled life in Australia. Mr Mehmood’s relationship with his wife Ms Phyo, who is studying in Australia and has family here (albeit temporarily), the economic circumstances of his family having a comfortable life in Pakistan and Mr Mehmood being able to earn more money in Australia than at home in Pakistan using his qualifications gained in Australia, the Tribunal finds are major incentives for Mr Mehmood to remain and stay in Australia. Mr Mehmood’s plans to return either to Pakistan or Myanmar were very general which the Tribunal did not find consistent with Mr Mehmood being a genuine student who is in Australia temporarily to obtain a qualification and then return home (or to Myanmar) to use that qualification to commence a career. As a result, the Tribunal finds that Mr Mehmood has significant incentive to remain in Australia beyond the completion of his studies that causes the Tribunal to doubt whether Mr Mehmood is a genuine applicant for temporary entry and stay in Australia as a student.

28. The Tribunal informed Mr Mehmood about his Provider Registration and International Student Management System (PRISMS) record during the hearing in accordance with s.359AA of the Act. The Tribunal told Mr Mehmood what PRISMS was, how the information in his report was compiled, that it showed he had completed three courses since arriving in Australia and had enrolments in a further seven courses cancelled in his four years in Australia at the time of hearing, which could indicate to the Tribunal that he was studying to maintain residence in Australia rather than to progress academically and return to Pakistan. The Tribunal explained this information was relevant to Mr Mehmood’s application because it could show he was not in Australia to stay temporarily as a genuine student. The Tribunal further explained the consequence of the Tribunal relying on that information was that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

29. The Tribunal offered Mr Mehmood an adjournment to consider his PRISMS information before commenting upon it. Mr Mehmood requested and was granted a short adjournment to consider that information.

30. In response to the Tribunal’s disclosure of potentially adverse information under s.359AA Mr Mehmood said he completed the Certificate IV in Marketing on 14 August 2013 and the Diploma of Marketing on 12 February 2014 but felt at the end of those studies he did not have qualifications that would help him gain employment in Pakistan.

31. In his statutory declaration dated 15 January 2018 Mr Mehmood declared:

    At the time, I knew I wanted to study overseas and gain a qualification which would be internationally recognised so I could better my skills and increase my career opportunities. However, I was very young and I admit that, at that time, I did not have a clear idea about what I wanted to do. I chose Marketing as I thought it might be a good qualification to enter a corporate/office environment when I returned home.[3]

    [3] Tribunal file, folio 69.

32. Mr Mehmood then enrolled in a Diploma of Electronics and Communications Engineering which he considered would give him a technical qualification increasing his employment opportunities back in Pakistan. However, his enrolment was cancelled on 4 October 2014 for non-payment of fees. Mr Mehmood told the Tribunal that he did not have a proper job at this time and could not afford his course fees. He said that at times he resorted to trying to find gold coins from shopping trolleys to support himself.

33. In his 2018 statutory declaration Mr Mehmood declared:

    17. Whilst, when I first arrived in Australia, I was receiving financial support from my parents, in 2014 they could not send me as much money due to their own financial problems and so I could not rely on them for financial assistance. They did not tell me why they could no longer send me money other than they could not afford to at that time.

    18. In a previous statement provided to the Department, I stated that part of the reason as to why my parents could not send me money was because my mother was “seriously ill”. I provide instructions to my then Migration Agent that my mother had health problems.

    19. My parents were experiencing financial problems however it was incorrect to say that it was as a result my mother being “seriously ill”.

    20. Nevertheless I felt I could not tell my parents that I was struggling financially. I did not want to burden them with my problems and on reflection, I was also deeply embarrassed to admit to my parents, or anyone else for that matter, that I was struggling so badly. I was young, lacking direction and easily influenced by others.[4]

    [4] Tribunal file, folio 69 (back).

34. The Tribunal was concerned that Mr Mehmood deliberately misled the Department in the past, but gives him some credit for telling the Tribunal about that.

35. On 15 November 2014, Mr Mehmood enrolled in a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Management). Mr Mehmood told the Tribunal he was influenced to enrol by a friend who was studying the course but that he found the physical work during field placements and the distance to travel to the education provider did not suit him and he stopped attending classes and did not pay his course fees. As a result, these enrolments were cancelled by his education provider on 17 August 2015 and 20 February 2016 respectively.

36. Mr Mehmood’s representative submitted that:

    … His decision to undertake study in painting and decorating was born out of immaturity and a lack of direction he was experiencing in his life. He was highly impressionable at the time, being only twenty-three years of age, and now deeply regrets this decision.[5]

    [5] Tribunal file, folio 80 (back).

37. This submission is consistent with Mr Mehmood’s oral evidence to the Tribunal.

38. Mr Mehmood told the Tribunal he met his future wife, Ms Phyo in mid-2015 and, as is explained below, she has been a positive influence on his studies.

39. On 8 April 2016, Mr Mehmood applied for a further Student (Subclass 572) visa so he could complete his Certificate III in Electronics and Communications and his Diploma of Electronics Communications and Engineering.

40. The delegate then refused Mr Mehmood’s application on 13 June 2016.

41. At the time of the delegate’s decision Mr Mehmood’s academic, and for that matter, work record in Australia was poor. He had been in Australia for four and a half years and had completed approximately 12 to 18 months of study and had not completed a course since February 2014.

42. Balanced against these considerations is that Mr Mehmood has recently turned around his poor academic performance in Australia. Despite the delegate’s refusal, Mr Mehmood continued with his studies and completed the Certificate III on 14 January 2017. Mr Mehmood provided a copy of his certificate of completion for that course to the Tribunal.[6]

    [6] Tribunal file, folio 84.

43. At the time of hearing Mr Mehmood was studying his Diploma of Electronics and Communications Engineering and provided academic transcripts showing he had completed 15 units successfully and received credit from previous studies for a further five units.[7]

    [7] Tribunal file, folios 82 to 83.

44. Mr Mehmood’s evidence to the Tribunal is that his now wife, Ms Phyo, made him realise that he needed to finish his studies and since then he has been studying successfully.

45. In relation to the six month gap when Mr Mehmood was not enrolled in any course and did not study between August 2015 and January 2016, Mr Mehmood declared in his 2018 statutory declaration:

    … I stopped attending school as I could not afford the tuition fees. At the time I also could not afford to pay my rent and so I had a number of friends help me pay my rent and groceries. Once I got back on my feet and was working regularly I pay them back.[8]

    [8] Tribunal file, folio 68.

46. Mr Mehmood’s evidence to the Tribunal is that as his relationship with his now wife developed over time she helped him to sort out his financial and study difficulties from 2015 and 2016 leading to him successfully completing his Certificate III and enjoying his Diploma course work which he expects to complete in December 2018.

1. The Tribunal finds that Mr Mehmood’s recent academic progress indicates that he now has sufficient knowledge of living and studying in Australia to be able to do so successfully.

2. Mr Mehmood now feels more confident about his future. In his 2018 statutory declaration he declared:

   43. Given that I will have an Australian qualification in electronics, which are highly regarded around the world, I will be in a good position to find a job as an electrical technician.

   44.In Pakistan electrical jobs are in high demand as it is a developing country. I have identified that job opportunities are present in public transport companies, electrical and machinery companies. In Pakistan, Australian qualifications are highly regarded which is why choose (sic) to study here in the first place. I am confident that I will obtain employment in a higher position than that of a Pakistani educated person because Australia is known to be one of the best education providers in the world.

   45. In addition, as my father is employed within the Pakistani government may prove beneficial (sic) for my prospects of obtaining a job given he has good connections. He also has a number of friends who are familiar with the field which can also assist in guiding me towards job opportunities.

   46. Even without the assistance of my father’s connections, a simply (sic) job search on a Pakistani job search website, produces page after page of job applications regarding electrical positions.

3. The Tribunal accepts Mr Mehmood’s reasons for studying in Australia are sound.

4. Mr Mehmood showed the Tribunal copies of the results of some internet searches he had undertaken. The Tribunal gives this evidence little weight as it showed no more than, in the context of the whole of Mr Mehmood’s oral evidence, that he could conduct internet searches about employment opportunities for electrical engineers in Pakistan. It was not evident to the Tribunal that Mr Mehmood had used that information to inform his own career plans or that he had a clearer career plan in part as a result of these searches.

5. When the Tribunal asked Mr Mehmood what he would do as an electrical engineer in Pakistan he struggled to provide the Tribunal with a clear or convincing answer, eventually advising the Tribunal that he would be able to work in computer aided design or find a job in 3-D printing. Whilst the Tribunal accepts Mr Mehmood has made recent academic progress the discussion the Tribunal had with Mr Mehmood about his future work plans resulted in the Tribunal forming the view that his future plans were vague at best.

6. The Tribunal outlined its concerns about Mr Mehmood’s answers to what he would do as an electrical engineer during the hearing. The Tribunal told Mr Mehmood and Ms Verma his answers caused the Tribunal significant concern, particularly in the context of Mr Mehmood telling the Tribunal that earlier in his studies in Australia he did not have a clear career direction and his admission that he studied courses, both that he had completed and had abandoned, that were of little value to his employment prospects in Pakistan.

7. In response Ms Verma submitted that Mr Mehmood had not been very articulate in his responses on this issue but that this was a communication problem and did not reflect upon his intentions or genuineness as a temporary entrant as a student. Ms Verma submitted Mr Mehmood did not have to be articulate or the top of his class to be a genuine student, but he was committed to his studies and had made genuine academic progress.

8. The Tribunal accepts that someone who is not articulate or the best (or even a good) student can still be a genuine temporary entrant as a student and also accepts that Mr Mehmood has made recent academic progress.

9. However, the Tribunal did not accept Ms Verma’s submission during the hearing that Mr Mehmood’s answer reflected an inability to articulate his answer properly. The Tribunal gives this aspect of Ms Verma’s submissions little weight. Mr Mehmood was articulate throughout the hearing and generally presented as a witness who was able to answer the Tribunal’s questions spontaneously and clearly.

10. In his own closing statement, Mr Mehmood told the Tribunal he was only half way through his Diploma of Electronics and Communications Engineering course and he will have a better idea of what he can do with that qualification in Pakistan at the end of the course.

11. This evidence was of significant concern to the Tribunal. As already noted Mr Mehmood had already given evidence of previously lacking a clear educational or career direction and enrolling in courses that were of little value to his future causing him significant regret. As a result, the Tribunal expected Mr Mehmood to now have a clear career plan and to be able to explain to the Tribunal how his current studies would advance or assist with that plan.

12. Despite being given numerous opportunities by the Tribunal, Mr Mehmood could not explain how his current studies would advance or assist with his career plan.

13. Mr Mehmood’s evidence also caused the Tribunal to doubt Mr Mehmood’s ability to use the Diploma qualification to obtain employment or improve his employment prospects in Pakistan. It was evident to the Tribunal that at the time of hearing even though Mr Mehmood was half way through his Diploma course he was not able to explain and did not appear to understand how he could practically use the qualification in paid employment. As noted above, in showing the Tribunal internet searches he had undertaken Mr Mehmood demonstrated no more than he was able to conduct an internet search of positions for electrical engineers. In those circumstances, the Tribunal finds that Mr Mehmood’s current course will not assist him to obtain employment or improve his employment prospects in Pakistan.

14. Mr Mehmood professed to having matured since meeting his wife in mid-2015 and at 26 years of age to having a clear career path when he returns to Pakistan.

15. Mr Mehmood’s unconvincing evidence about how he will use his Diploma of Electronics and Communications Engineering in Pakistan led the Tribunal to form the view that Mr Mehmood does not have a clear career plan and his current course is of questionable or very limited value to his future. The Tribunal finds Mr Mehmood is not studying in Australia genuinely temporarily as a student but is using the Student visa program to maintain ongoing residency in Australia.

16. Mr Mehmood has completed courses of short duration that are relatively inexpensive and has studied in three unrelated fields (marketing, electronics/engineering and painting/construction) and has not progressed beyond the Vocational Education and Training level of study. The Tribunal finds that Mr Mehmood is not studying in Australia to genuinely progress academically and is using the Student visa program to circumvent the intentions of Australia’s migration program.

17. Ms Verma raised the possibility during the hearing and in her written submission to the Tribunal dated 18 January 2018[9], that Mr Mehmood’s relationship with Ms Phyo, who also holds her own Student visa, could be of concern to the Tribunal as a relationship of concern under Direction 53. Ms Verma’s written submission included a detailed submission on this specific consideration to the effect that even if Mr Mehmood chose to join Ms Phyo’s Student visa as a dependent after the completion of his studies this would not necessarily be inconsistent with Mr Mehmood being a genuine temporary entrant into Australia to study as a student.

    [9] Tribunal file, folios 74 to 80 particularly at folios 75 and 76.

18. The Tribunal indicated during the hearing that this issue was not a concern for the Tribunal in Mr Mehmood’s circumstances. Mr Mehmood gave evidence that he intends to return to Pakistan to support his family, and Ms Phyo’s family, upon the completion of his current Diploma studies.

19. When Ms Phyo has completed her studies Mr Mehmood told the Tribunal they will then decide whether they are going to live in Pakistan or Myanmar, with Mr Mehmood noting that there are more employment opportunities for electrical engineers in Pakistan than Myanmar.

20. Whilst the Tribunal gave less weight to other aspects of Mr Mehmood’s evidence for the reasons noted above, the Tribunal did not have any evidence before it to indicate Mr Mehmood’s relationship with Ms Phyo is a contrived relationship for the purpose of obtaining a Student visa and therefore it is not a relationship of concern under Direction 53. The Tribunal therefore makes no findings in relation to this consideration.

Applicant’s immigration history

1. The Tribunal informed Mr Mehmood about his movement record during the hearing in accordance with s.359AA of the Act. The Tribunal told Mr Mehmood what his movement record was and how the information in it was compiled. The Tribunal also told Mr Mehmood his movement records showed that he had not returned to Pakistan since arriving in Australia in January 2013, which could indicate to the Tribunal that Mr Mehmood is well settled in Australia with little incentive to return to Pakistan to maintain his familial and other relationships and that he was studying to maintain residence in Australia rather than to progress academically and return to Pakistan. The Tribunal explained this information was relevant to Mr Mehmood’s application because it could show he was not in Australia to stay temporarily as a genuine student. The Tribunal further explained the consequence of the Tribunal relying on that information was that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.

2. The Tribunal offered Mr Mehmood an adjournment to consider the information in his movement records before commenting upon it. Mr Mehmood requested and was granted a short adjournment to consider that information.

3. In response to the Tribunal’s disclosure of potentially adverse information under s.359AA Mr Mehmood said he arrived in Australia in 2013 and planned to return to Pakistan in 2014. When he completed his marketing studies in 2014 he felt his qualifications were not sufficient for him to gain employment back in Pakistan so he took a further enrolment, before encountering employment and financial difficulties, where he did not have sufficient funds to return to Pakistan. Once his application for a further Student visa was refused in July 2016 and he appealed to the Tribunal, Mr Mehmood thought it would not be a good idea during that time to leave the country.

4. When Mr Mehmood knew he could not maintain his enrolments at different times he did not seek to put in place a payment plan for his course fees or to try and defer his studies or provide evidence to the Tribunal of seeking any help from his education provider, the Department or anyone else other than friends who helped support him living in Australia. The Tribunal accepts Mr Mehmood may have been embarrassed to tell his parents of his difficulties.

5. However the Tribunal does not accept such embarrassment should or did prevent Mr Mehmood from seeking other help. Mr Mehmood was well aware his sole purpose for being in Australia was to study and that condition 8202 of Schedule 8 to the Regulations was a condition of both his Student visas requiring Mr Mehmood, in summary, to maintain his enrolment in a registered course and to achieve satisfactory academic progress. Mr Mehmood’s enrolments were cancelled three times for non-payment of fees in 2014, unsatisfactory course progress in 2015 and non-commencement of studies in 2016 with a six month period in 2015-16 noted above where Mr Mehmood was not enrolled in any study. Mr Mehmood’s apparent failure to seek help when encountering these difficulties, which the Tribunal finds did not occur in circumstances that were beyond Mr Mehmood’s control, are not the actions of a genuine student who is motivated to study, to progress academically and to return to their home or another country to take advantage of their Australian qualifications to start their career with improved remuneration. This caused the Tribunal to doubt the genuineness of Mr Mehmood’s intention to stay in Australia temporarily as a student at those times.

6. While it is apparent from Mr Mehmood’s evidence that he did not comply with the conditions of his visas at times by failing to maintain his enrolments and achieve satisfactory academic progress, there is no information before the Tribunal to indicate that Mr Mehmood has been found to be in breach of the visas he has held in Australia, been refused a visa in Australia (other than the refusal leading to this review) or had a visa cancelled in Australia.

7. Similarly, there is no information before the Tribunal to indicate that Mr Mehmood has been found to be in breach of a visa, been refused a visa or had a visa he held cancelled in any other country.

   Any other relevant information

8. In closing submissions, Ms Verma submitted that Ms Phyo is the driving force behind Mr Mehmood’s recent academic progress and that his marriage to Ms Phyo in 2017 has fundamentally changed Mr Mehmood’s life.

9. Ms Verma submitted that Ms Phyo will be a very competent professional once she has finished her nursing studies and invited the Tribunal to find that Mr Mehmood will be also.

10. Ms Verma said that Mr Mehmood’s progress toward this outcome is shown by the recent completion of his studies in sequential order without issues. She submitted that Mr Mehmood is now mature enough to be able to conceptualise his and Ms Phylo’s future and he is no longer a person who lacks the ability to foresee consequences.

11. The Tribunal accepts the positive influence Ms Phyo has had on Mr Mehmood’s academic performance but does not accept that Mr Mehmood through his evidence has demonstrated that upon completion of his current course he will become a competent professional. The Tribunal also did not find Mr Mehmood’s evidence indicated he was significantly more mature now at age 26 in relation to his studies and career than he was at age 23 when Ms Verma described him as immature and lacking direction.[10]

    Conclusions

    [10] Refer to para 35 above.

12. The Tribunal has found that Mr Mehmood does not meet the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations for the above reasons, which include, in summary that Mr Mehmood:

    ·has significant incentive to remain in Australia with his wife where he has a well-established lifestyle supported by his evidence that he can earn more money in Australia than he can in Pakistan which outweighs the incentive Mr Mehmood has to return to Pakistan upon the completion of his studies as his family is financially well off and at the time of hearing his incentive to return home had not been strong enough for Mr Mehmood to visit his family even once since arriving in January 2013. In short, the Tribunal was not persuaded by Mr Mehmood’s evidence that he has any compelling reasons to return to Pakistan. This caused the Tribunal to doubt that Mr Mehmood is a genuine temporary entrant into Australia for stay as a student; and

    ·gave unconvincing evidence about how he will use his Diploma of Electronics and Communications Engineering in Pakistan leading the Tribunal to form the view that Mr Mehmood does not have a clear career plan, that his current course is of questionable or very limited value to his future and Mr Mehmood is not studying in Australia genuinely temporarily as a student but is using the Student visa program to maintain ongoing residency in Australia.

13. On the basis of the above, and having considered Mr Mehmood’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that Mr Mehmood intends genuinely to stay in Australia temporarily. Accordingly, Mr Mehmood does not meet cl.572.223(1)(a) of Schedule 2 to the Regulations.

14. The Tribunal has found Mr Mehmood 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 Mr Mehmood 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 Mr Mehmood meets the prescribed criteria for that subclass. As the Tribunal has found that Mr Mehmood does not meet a criterion for the grant of a Student visa, it must affirm the decision under review.

    DECISION

15. The Tribunal affirms the decision not to grant Mr Mehmood a Student (Temporary) (Class TU) visa.

    Michael Ison
    Senior Member