Mohammed (Migration)

[2020] AATA 5002

Mohammed (Migration) [2020] AATA 5011 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Pasha Mohammed

CASE NUMBER:  1926659

DIBP REFERENCE(S):  BCC2019/3275354

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 September 2020 at 11:28 am (VIC time)

DATE OF WRITTEN RECORD:                16 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 16 September 2020 at 11:26am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – applicant’s arrival on a visitor visa – recently arranged marriage – employment prospects – previous degree course in his home country – value of studies to future career – maintaining ongoing residence in Australia – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
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 14 September 2019 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 September 2020 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 decision for file number 1926659 for Mr Ahmed Pasha Mohammed.

4. To be eligible for the grant of a student visa, a person must be a genuine applicant for entry and stay as a student, having a genuine intention to stay in Australia temporarily.  The applicant must also intend to comply with any conditions subject to which the visa is granted.  This is known as the genuine, temporary entrant criterion under clause 500.212.  You applied for this student visa on 29 June 2019. 

5. Your application was refused by the ministerial delegate on 14 September 2019, because the delegate, after considering your circumstances, immigration history, the value of the proposed courses and other relevant matters, was not satisfied that you are a genuine applicant for entry and stay as a student. 

6. The delegate was not satisfied that you intend genuinely to stay in Australia temporarily.  The delegate concluded that they had serious concerns about your true intention in Australia.  They were not satisfied that you had significant incentive to return to India, or that you had demonstrated substantial economic ties or personal assets there, and they formed the view that you were using the student visa program to maintain ongoing residence in Australia. 

7. You applied to have that decision reviewed by this tribunal.  As was explained in the primary decision, when considering whether someone is a genuine student, it is necessary for decision-makers to have regard to the factors set out in Ministerial Direction number 69.  These issues are discussed in the primary decision and they include; your circumstances in your home country, potential circumstances in Australia, your incentive to stay in Australia or return home, whether you are using the student visa program to maintain ongoing residence in Australia, the value of your courses to your stated business and career goals, your immigration history and any other relevant matter.  It is not intended as a checklist, but as a guide for decision-makers in considering whether an applicant, on the whole, meets the genuine, temporary entrant requirements. 

8. The role of the tribunal is to take a fresh look at your application and to consider your circumstances against those issues in direction number 69.  The tribunal needs to be satisfied you are a genuine student who genuinely intends to stay in Australia temporarily.  The primary decision and its references to direction number 69 clearly put you on notice about the issues as to whether or not you are a genuine temporary entrant. 

9. The tribunal sent you an invitation to attend today’s hearing on 27 August 2020.  That invitation specifically refers to direction number 69 and you were asked to provide the tribunal with a range of information.  A copy of direction number 69 accompanied the invitation sent to you.  In response, you have provided some documents and evidence to the tribunal.  That includes a copy of your current confirmation of enrolments, a completed section 359(2) questionnaire and a letter from Acumen Education confirming your enrolment in the proposed courses.  There is also a statement from you to the tribunal in relation to the genuine temporary entrant requirements. 

10. The tribunal has had regard to these documents, as well as to the oral evidence you gave at the hearing today.  The tribunal has also had regard to the contents of the department’s file.  The hearing was conducted today by telephone due to the COVID-19 restrictions.  You were represented in your application for review by a registered migration agent, although your agent did not attend the hearing.  The hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

11. You arrived in Australia on 4 May 2019 on a visitor visa.  You have remained in Australia since then on temporary visas.  Since arriving in Australia, you have enrolled in three courses of study, which you are currently enrolled in.  That includes a Certificate III in Light Vehicle Mechanical Technology, which you completed on 5 August 2020; a Certificate IV in Automotive Mechanical Diagnosis, which commenced on 24 August 2020 and will end on 20 January 2021; and a Diploma of Automotive Technology, which will commence on 9 February 2021 and end on 20 October 2021.  This means that your time in Australia will have been extended for over two-and-a-half years.

12. If your application for a student visa is granted, the total amount of time you will have spent on a temporary visa will be over two-and-a-half years.  

13. The tribunal turns to consider Ministerial Direction number 69.  You are a single man from India.  You stated at the hearing that your mother has recently arranged your marriage and that you are currently engaged.  You were asked why you were not undertaking these studies in your home country and you told the tribunal that you had looked into courses in India and had visited institutes there. 

14. After graduating from a Bachelor of Commerce, in India, you said that you were having difficulties getting a job.  You looked at the proposed courses in automotive studies in India but said that there was a lot of competition and limited positions and you were unable to secure a position.  It is noted in your questionnaire response in relation to the question whether there are similar courses available in your home country and why you are not undertaking study there, your response only included reasons why you were studying in Australia. 

15. These reasons included that; Australia is the third most preferred nation for overseas students, that there is practical teaching approach here, followed by well-trained and experienced trainers, the government has developed favourable laws and policies for international students, Australia has amicable and welcoming people who make international students feel welcomed, it is a safe and secure environment, there are numerous tourist attractions here, Australia is a multi-cultural country, the qualifications from Australia are globally recognised by employers, the education system is very advanced and involves practical and theoretical approaches unlike in India, studying in Australia equips the students like you with developed communication and interpersonal skills making you independent and critical thinkers, and studying in Australia gives you international experience that would not be possible if you studied in India.

16. In your statement to the tribunal, it is noted that you said you initially came to Australia to explore here and spend time with your brother.  You said whilst visiting various tourist attractions, you noted interest of people on both modern and vintage cars and how some were enthusiastic about bikes and trucks.  You said there were also cars, bikes and truck shows organised annually.  Here in Australia, you came across numerous car brands and different types of trucks.  You said you have always been interested in cars and bikes and being in Australia further developed your interest in automotive in cars and encouraged you to acquire theoretical knowledge about it. 

17. You got an opportunity to visit Acumen College with your brother, as your brother is currently attending his practical sessions at the college and was doing his Certificate III in Light Vehicle Mechanical Technologies.  You were amazed to see the practical knowledge of lecturers at that institute and you have heard good reviews from other international students about the courses there.  That is the reason why you decided to study automotive courses in Australia.  You also provide the same reasons for studying in Australia as you did in your questionnaire. 

18. There is no mention in your statement to the tribunal, or in your statement provided to the department, about you ever being interested in automotive studies in India, nor evidence that you had previously investigated courses in India.  The tribunal does not accept the evidence that you gave at the hearing about your investigations into automotive studies in India prior to coming to Australia.  It is simply not consistent with the evidence in your statement made to the tribunal and to the department.  The tribunal considers it more likely that you have decided to enrol in these courses in Australia because your brother is already studying them here.

19. Accordingly, the tribunal does not consider you have sound reasons for not studying the proposed courses in your home country.  Even if it were correct that there is a lot of competition in the courses in India, this is simply evidence that you need to have the motive and marks to study the proposed course. 

20. The tribunal takes into account the fact that you have secured entry into a Bachelor of Commerce in your home country and indeed completed that course.  The tribunal considers that you have the intelligence and knowledge within your means to secure a place in automotive study courses in your home country.

21. As to the explanation that the courses involve practical and theoretical approaches here, unlike in India, the tribunal does not accept this evidence as there is no supporting evidence to show the course components in India and that they are lacking in any practical way.  Given that you stated that you intend to return to India, the fact that studying in Australia gives you an international experience does not appear to be particularly relevant in this case.  For these reasons, the tribunal does not consider you have sound reasons for not studying in your home country.

22. The tribunal has had regard to your personal ties to your home country.  It notes that, as already mentioned, you are engaged to be married and that your mother arranged this marriage.  Your father is deceased and your living relatives in India include your mother, who is around 60 years old and your sister.  You also have a brother who is studying in Australia and he has been here since 2016.  You say that you maintain contact with your family in India via video calls and voice calls every day.  You have not returned to your home country since you arrived in Australia. 

23. The tribunal considers that you have demonstrated that you are able to maintain your personal ties to family in India whilst remaining offshore and the tribunal does not consider that you have demonstrated that your personal ties are such that you have a significant incentive to return there.  That is despite the fact that you have stated that you are engaged to be married.  The tribunal has considered your economic ties to your home country.  It notes that your most recent salary, when you were working in India, was 1 lakh, 3000 per month, which is approximately 100,300 lakh per month.  This was in your role as sales manager for Creative IT Solutions where you worked from February 2017 until you departed for Australia.

24. You have stated in your questionnaire that there are assets owned which include residential properties of an Australian dollar value of approximately $198,000, land of $29,000 value and savings of approximately $A20,000.  All of these are held in India.  However, you have not provided any supporting evidence to support this claim to either the tribunal or to the department.  Having considered the evidence before the tribunal, or rather, lack of evidence before the tribunal, of your economic circumstances, the tribunal is not satisfied that you have established significant economic circumstances such that you have a significant incentive to return to India upon the completion of your studies here.

25. The tribunal has considered your response in the questionnaire that you have no concerns about military service commitments or political or civil unrest in your home country.  The tribunal weighs these matters in your favour.  The tribunal has considered your potential circumstances in Australia.  It takes into account that you came to Australia on a visitor visa to visit your brother, who has been residing here since 2016.  It is significant that your brother is studying the same courses that you are and that he has assisted and through your brother you discovered the education provider where you are now enrolled.

26. The tribunal considers it a distinct possibility that you have enrolled in the proposed courses because your brother is already enrolled and studying in these courses and that you have witnessed that this is a way to remain residing in Australia beyond the initial visitor visa period.  Whilst you are not working in Australia, you are supported by your mother and brother, financially, for living expenses and tuition fees. 

27. You denied having any friends and you denied that your brother, someone who has resided in Australia for the last four years, has any friends here.  The tribunal has difficulty accepting that someone has resided in a country for such a significant time and has no friends and the tribunal considers that you are trying to downplay the ties that may exist here in Australia for your brother and for yourself.  It is noted that your brother works part-time as a mechanic.  There is nothing to stop you, were you to be granted a student visa, for you to find employment for yourself here. 

28. The tribunal does take into account that you have completed the Certificate III course and that you are now currently enrolled and studying in the Certificate IV course.  It also takes into account your statement that you are a genuine student.  However, the tribunal considers that it is likely that you are using the student visa to maintain ongoing residence in Australia and that in doing so, you are attempting to circumvent the intentions of the migration program.  It considers this to be the case because you have witnessed your brother’s life in Australia, and you have followed the same path that he has. 

29. The tribunal considers it unlikely that you genuinely held an interest in automotive studies prior to you coming to Australia.  It was only after you are here, and you have witnessed your brother studying these courses and the circumstances in which he is living here that you have made the decision to study in Australia.  The tribunal has considered your plans for the future, as stated in your questionnaire. 

30. You stated, after achieving expertise and certification in automotive technology field, you will return to your home country of India where you can apply for various posts in automotive retail, service and repair industry.  This includes automotive retail sales manager, workshop manager, area manager and since India is currently developing at a rapid pace, there are various automotive industries which are looking for highly qualified candidates and those who hold degrees of international accreditation.  Those persons holding such qualifications are given preference during the recruitment process. 

31. Your international technical qualification about automotive studies and previous experience in sales, will definitely increase possibilities for you in the automotive retail industry in India.  You said Deloitte survey has proved that there is less talent for automotive retail sector because of a lack of relevant knowledge and skills.  The customers depend on the person with whom they are dealing with when buying their first vehicle, or whilst buying new updated versions of their choice of vehicles.  Therefore, it is important that their managers also have technical knowledge to provide compelling experience for consumers.

32. You said India has developed as a potential country for international automotive brands to establish their manufacturing plants in India.  Similarly, there is increased demand for upgraded and new vehicles.  The vehicles are manufactured in plants, but then they reach the consumers through retailers and dealers.  The famous automotive companies such as Tata Motors, Suzuki, Hyundai, Mahindra and Mahindra Limited, Toyota, Honda, Audi, Ford, Nissan, to name a few, have their own showrooms.  You will apply for jobs with them.  You are confident that because of your automotive qualifications, previous commerce studies and experience in sales, will help you acquire a position of retail sales manager and later, be an area manager. 

33. The tribunal considers that your future career aspirations are to become a retail sales manager or area manager for vehicle manufacturers and in their showrooms.  As to the value of the proposed courses to your future, the tribunal has had regard to the fact that you have previously studied a Bachelor of Commerce and you have experience in sales roles. 

34. The tribunal does not consider that the proposed courses are consistent with your current level of education, which is a Bachelor of Commerce.  The tribunal has also had regard to whether or not the proposed courses will assist you in obtaining employment or improving your employment prospects in your home country.  As already noted, the tribunal considers that your future career goals are to acquire a position of retail sales manager and subsequently, area manager for vehicle manufacturers or companies selling their vehicles in India. 

35. Salespeople working in the automotive industry do not generally require in-depth knowledge of the workings of vehicles and the mechanics of the vehicles.  They require sufficient knowledge about the cars that they are selling, but it does not require them to hold vocational level mechanical qualifications.  The tribunal considers that the proposed courses are relevant to those wanting to work as a mechanic, rather than on the retail sales end part of the business. 

36. Accordingly, the tribunal does not consider that the proposed courses are relevant to your future employment or, at the very least, hold only a minimal level of relevance to the positions that you have stated that you are interested in.  The proposed courses hold no relevance to your previous employment when you were working as a sales manager and sales executive for your previous employers in India.  The Bachelor of Commerce is a course that is highly relevant to your previous employment and it is also relevant to your future aspiration career goals. 

37. It follows that the tribunal is not persuaded that the proposed courses will affect your remuneration that you can expect to earn in your home country or third country.  The tribunal considers that your previous work experience as a sales officer or sales manager is more relevant to work as a retail automotive salesperson or area manager than the courses that you are currently studying.  The tribunal has had regard to your immigration history and notes that there is nothing particularly adverse in your history that would affect your application for student visa.

1. It is noted that you were refused a visitor visa in 2016, but the tribunal does not consider that that affects your application for a student visa.  You have not raised any other relevant matter for consideration. 

2. Having regard to your circumstances as a whole, including the issues in direction number 69, the tribunal is not satisfied that you are a genuine student who intends to stay temporarily in Australia. 

3. Therefore, the tribunal finds that you do not meet clause 500.212.  It is therefore the decision of this tribunal to affirm the decision under review. 

   DECISION

4. The Tribunal affirms the decision under review.

   Elizabeth Tueno
   Member