Mohamed Marshuk (Migration)

[2018] AATA 4543

Mohamed Marshuk (Migration) [2018] AATA 4543 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rashmi Jinan Mohamed Marshuk

CASE NUMBER:  1716543

HOME AFFAIRS REFERENCE(S):           BCC2017/1223925

MEMBER:M. Edgoose

DATE OF ORAL DECISION:  8 October 2018

DATE OF WRITTEN STATEMENT:         24 October2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 24 October 2018 at 12:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – travel movements – availability of courses in home country – regular contact with family – developed relationship – economic incentive – rent assistance – employment conditions – dob-in submissions – excessive working hours – reference letters – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 19 July 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 30 March 2017. 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 visas 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 intends genuinely to stay temporarily in Australia.

4. On 13 August 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 27 August 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant responded to the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” on 27 August 2018 (AAT Folio 27- 32) and informed the Tribunal that he did not consent to the Tribunal deciding the review without a hearing.

6. The Tribunal gave its decision on the review at the conclusion of the hearing held on 8 October 2018. The following are the reasons for that decision.

7. The applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an accredited interpreter in the Sinhala and English languages.

8. The applicant was assisted in relation to the review by their registered migration agent. The migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 genuinely to stay in Australia temporarily.

11. 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?

12. 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.

13. 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.

    Background and applicant’s immigration history

14. The applicant stated to the Tribunal that he did not know what was written in the response to the 359(2) request for information as he did not complete the forms. The applicant stated that his agent completed the forms for him and discussed it with the applicant. At hearing the Tribunal viewed the applicant’s passport to confirm the signature at the end of the requested information and it matched. The Tribunal notes that information about the applicant was not included in the 359(2) request for information and missing information was provided by the applicant at the hearing.

15. The applicant gave evidence at hearing that he is from Sri Lanka and first arrived in Australia in October 2009 on a 421 Sport Visa (TE). The applicant was granted a further two Sport Visas (TE) and two 401 Temporary Work (Long Stay Activity) visa. Given the amount of time the applicant has been in Australia on various temporary visas linked to his cricket activities may suggest that he has enrolled in a series of short, inexpensive courses and that the applicant is using the student visa primarily to maintain ongoing residence in Australia.

16. The applicant applied for the student visa on 30 March 2017. The delegate refused to grant the visa on 19 July 2017 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met. At time of application the applicant was proposing to study a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.

17. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history. The applicant informed the Tribunal that he has departed Australia on many occasions since arriving in October 2009 and that his most recent trip back to Sri Lanka was in February 2018 to visit his family. The applicant’s wife came to Australia on a spouse visa for the duration of the 2015/16 cricket season and stayed for approximately 6 months. The applicant told the Tribunal that he had travelled to the United Kingdom for a cricket tournament in May 2012 and that he complied with the migration laws of that country and the relevant visa conditions. The Tribunal gives little weight to the applicant’s travel movements.

    The applicant’s circumstances in their home country                    

18. The Tribunal has considered the factors in clause 9 of Direction 69 with respect to the applicant. At hearing the applicant informed the Tribunal that he had completed his GCE Ordinary Level (Year 11 equivalent) back in Sri Lanka in 1997. The applicant played professional cricket between the years 2000 and 2008 and was paid regular match fees. Before coming to Australia the applicant stated that he had worked at Jayanidu Hotel (AAT Folio 20) between May 2010 and August 2013 as a cook and was paid AUD $3000 per annum before coming to Australia.

19. The applicant told the Tribunal that he had not completed his studies back in Sri Lanka because tourism is now popular in his home county and that he liked to study in Australia. The Tribunal acknowledges that tourism in Sri Lanka has grown in recent years however the Tribunal does not consider the applicant has not completed the relevant research on the availability of quality hospitality courses back in Sri Lanka. For these reasons the Tribunal is not satisfied the applicant has provided reasonable reasons for not undertaking his studies back in Sri Lanka. The applicant initially came to Australia in October 2009 on a 421 Sport Visa (TE) to play cricket and is now seeking to study in Australia. It was only in March 2017 after arriving in Australia in October 2009 the applicant applied for his first student visa. The Tribunal has had regard to the three pieces of dob-in information discussed below that the applicant has only applied for a student visa to maintain ongoing residence in Australia to earn money and that he is not a genuine temporary entrant and a genuine student. 

20. The applicant told the Tribunal that his mother, brother, two sisters, wife and daughter are back in Sri Lanka. The applicant’s mother is a house wife and his wife works for a commercial credit finance company. The applicant informed the Tribunal that he has been able to manage personal relations with his mother, brother, two sisters, wife and daughter back in Sri Lanka while living in Australia by making contact with his wife every day and his mother a couple of times per week  via telephone and the social media application IMO. In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.

21. The applicant stated to the Tribunal that he has no issues of concern back in Sri Lanka.

    The applicant’s potential circumstances in Australia

22. The Tribunal has considered the factors in clause 11 of Direction 69 with respect to the applicant. The applicant stated that he has no significant ties in Australia other than the friends he has made at the cricket club. The Tribunal considers the friendships the applicant has developed with his team mates that at the various cricket clubs during the 9 years that he has been in Australia and his work colleagues would present as a strong incentive to remain in Australia.

23. The applicant informed the Tribunal that he is currently employed by the Northern Lions Sports Club as a cricket coach and player through his migration agent and is paid AUD$15,000 per season; this is the same migration agent who is assisting the applicant with the review process. The applicant stated that he currently lives in rental accommodation in Cheltenham and pays AUD $600 per month towards the rent. The applicant stated that he is also paid rent assistance by the Northern Lions Sports Club of which is run by his migration agent. The applicant stated that he is supporting himself financially from savings he has been able to make during his time playing cricket in Australia. The Tribunal finds that the economic circumstances of the applicant within Australia would present as a strong incentive for the applicant not to return to his home country.

24. The Tribunal gives regard to the applicant’s statement to the Department (DIBP Folio 32) that mentioned the following:

    a.The applicant has a desire to be a successful chef/cook and to reach this goal he must gain experience and formal training.

    b.The applicant had been working as a cook at a local hotel in his home country.

    c.The applicant plans to return to his home country once he has completed his studies and join a leading hotel. That by obtaining Australia qualifications it will boost his chances of achieving his career goals and place him a step ahead of others in the job market.

    d.The applicant mentioned that his only desire is to complete his studies and start his own business in the industry after gaining some experience in the industry.

    e.The applicant mentioned that he would like to live in his home country with his parents, siblings and relatives.

    The Tribunal gives little weight to the applicant’s future plans in his home country. At hearing the applicant was not able to provide any detail about his previous work at a local hotel other than the hotels name despite providing a number of references that he has worked at the hotel. The Tribunal considers that the student visa programme is being used to circumvent the intentions of the migration programmes and to maintain ongoing residence in Australia.

25. The Tribunal gives regard to the applicant’s statement to the Tribunal (AAT Folio 22-23) mentioned the following:

    a.The applicant said that he is married and his family live back in Sri Lanka, that he is a former professional cricketer and that he is now semi-retired and that he has chosen the hospitality field for his new career.

    b.The applicant has completed Certificate III and IV in Commercial Cookery and that he intends to complete a Diploma of Hospitality Management before returning to Sri Lanka.

    c.He gained experience as a cook back in Sri Lanka as a cook at Jayanidu Hotel (AAT Folio 20) and that the above qualification will help him gain a job in the hospitality field and in the long term will start up his own business in the same field.

    d.He has travelled to the United Kingdom and Australia for cricket tournaments and that he had carried out a lot of research on the higher education sector of both the countries.

    e.During his time in Australia he was impressed by its education system and its recognition around the world.

    f.The applicant stated the reason he selected ALTEC College is of its location to the CBD of Melbourne, that the college is run by highly qualified and experienced executives and program managers with years of professional experience in their respective fields and that students graduate with both theory and practical knowledge of their field.

    g.The applicant is looking forward to qualifying with a Diploma of Hospitality Management and he suspects that he will complete the course early after gaining credits from his Certificate III and IV in Commercial Cookery.

    h.When he completes the course he will be able to return to Sri Lanka and gain work in a reputed hotel as a manager and possibly in the future open up his own restaurant chain.

26. At hearing the applicant submitted a further statement dated 4 October 2018 that further reiterated the information provided in the statements in paragraph 25 and 26.  The Tribunal gives little weight to the applicant’s submission. 

27. The applicant submitted to the Tribunal a Confirmation of Enrolment for a Diploma of Hospitality Management through ALTEC (AAT Folio 24) which commenced on 1 October 2018 and is due to be completed on 29 March 2020. The Tribunal notes that this COE was created on 27 August 2018 the same day the applicant signed and completed his “Request for Student Visa Information under s.359(2) of the Migration Act 1958”. The Tribunal is concern that the applicant has only enrolled for his current course for the purposes of being granted a student visa and that he is not a genuine student and that the student visa is being used to maintain ongoing residence in Australia. The applicant was not able to produce a receipt for this course at hearing. The applicant stated at hearing that he has paid AUD $2,700 for this course and the total course of the course is AUD $12,500. One week after the commencement of the course the applicant was only able to tell the Tribunal that the course is about Diploma of Hospitality Management and the hospitality industry. Although pressed by the Tribunal the applicant was not able to tell the Tribunal anything else about the course. The applicant chose this course as this is his new goal to work in the hospitality industry. The Tribunal does not accept that the applicant will complete this course and that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

28. The applicant submitted to the Tribunal a record of results for a Certificate III in Commercial Cookery (AAT Folio 33) dated 17 November 2017 and a certificate  and record of results for a Certificate IV in Commercial Cookery through Boston Institute of Technology (ATT Folio 21 and 25) dated 23 April 2018. The Tribunal notes that for the Certificate IV course the record of results states the applicant received a Credit Transfer for 22 of the 33 units of work.

    Value of the course to the applicant’s future      

29. The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The value of the current course to the applicant’s future plans is to get a good job back in Sri Lanka and one day in the future he would like to open his own restaurant. The applicant also stated that he plans to return to Sri Lanka where he will gain some work experience and that one day in the future the applicant would like to return to Australia and complete a bachelor’s degree. The Tribunal accepts that the current course is the next stage in package of hospitality courses, however the Tribunal is concerned that the applicant’s future plans do not lie outside of Australia. The economic circumstances of staying in Australia outweigh the incentive to return home.

30. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, remuneration the applicant could expect to receive in the home country compared with Australia, 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.

    s.359AA Information

31. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant information which the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

32. The Tribunal advised the applicant that the Department of Immigration and Tribunal has been informed from three separate people that you are not a genuine applicant for entry and stay as a student and that you are continuing to be enrolled in courses so that you can stay in Australia for the purpose of earning money.

33. This information is relevant to the review because three separate pieces of information has been received from people who would appear to be in a position to have credible information about you.

34. The people know where you work and your overall history during your time in Australia. One of the submissions was anonymous and the two other submissions had names provided. The Tribunal advised the applicant it would not be disclosing the names of the people who have provided the information.

1. The Tribunal explained to the applicant the relevance of the information to the review process. The Tribunal also explained the consequences of the Tribunal relying upon the information.

2. The Tribunal confirmed with the applicant that he understood why the information was relevant to the review and the consequences of the Tribunal relying on the information. The Tribunal advised the applicant that he could seek additional time before commenting or responding to the information put to him.

3. The applicant sought additional time and requested a period of 3 weeks. The Tribunal carefully considered the applicant’s request. The Tribunal refused the applicant’s request of 3 weeks for additional time and granted him an adjournment of 20 minutes to consider his response and to make contact with his registered migration agent. Considering the information that had been submitted to the Tribunal and the Department about the applicant and the length of time the applicant has been in Australia the Tribunal did not see that it was appropriate to grant the applicant the requested additional time of 3 weeks. The Tribunal believed that it was appropriate for the applicant to be granted an adjournment of 20 minutes to consider his response and to allow him time to make contact with his migration agent. The Tribunal in making its decision to grant the applicant only 20 minutes was due to the consistent information provided in the submissions about the applicant working excessive hours for the Mermaid Cleaning Company and Malvern Tram Depot and that he was not a genuine student.

4. During the adjournment the applicant contacted his agent and sought advice on how to respond to the Tribunal. On resumption of the hearing the applicant stated that he was not satisfied with the time granted because the information submitted to the Tribunal was not correct as the applicant claimed to have attended some classes. However the applicant admitted to the Tribunal that he has been working more hours than he is entitled to under his visa and that his migration agent (who also employed his as a cricket coach and player) was not aware of the work. The applicant admitted that he has been working at Malvern Tram Depot and for Mermaid Cleaning Services. The applicant stated that he works between 55 to 60 hours per week in total for both the Mermaid Cleaning Company and at the Malvern Tram Depot. The applicant stated that he is paid AUD$24 per hour by the Mermaid Cleaning Company and AUD$20 per hour at the Malvern Tram Depot.

5. The applicant responded to the Tribunal that he would appreciate if the Tribunal would grant him a student visa and feels that the information sent to the Tribunal is wrong because he already has the schedule of his current course that says when he is due to attend classes.

6. The applicant stated that he had no further information to provide to the Tribunal and he did not request more time.

7. The Tribunal has considered the information put to the applicant and his responses. The Tribunal places significant weight on the 3 submissions because of the consistent nature of the information provided in each of the submissions which included information about the applicant’s study history, working excessive hours and that he is only enrolled in courses so that he can stay in Australia for the purposes of earning money. This suggests that the three separate pieces of information came from people who have knowledge about the applicant and appear to know of his day to day activities. The Tribunal accepts that the applicant has admitted to breaching his visa conditions by working between 55 to 60 hours per week for the Mermaid Cleaning Company and Malvern Tram Depot on top of his paid work for the Northern Lions Sports Club where he is paid AUD $15,000 per annum. This demonstrates to the Tribunal that his primary purpose of remaining in Australia is to earn money and that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

8. The Tribunal also has considerable concerns about the validity of the hotel reference letters considering the logo of both the agent and the hotel letterheads are the same.

9. 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).

10. 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.

11. 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

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

    M. Edgoose
    Member