Qasim (Migration)

[2018] AATA 2184

Qasim (Migration) [2018] AATA 2184 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Qasim

CASE NUMBER:  1621666

DIBP REFERENCE(S):  BCC2016/3225126

MEMBER:Stephen Witts

DATE:1 May 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 01 May 2018 at 3:40pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Breached visa condition 8202 – Poor study record – Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500,211, 500.212, 500,218

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 December 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 to stay in Australia temporarily.

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

8. 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?

9. 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.

10. 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.

11. At the hearing the Tribunal had a discussion with the applicant regarding the issues for consideration outlined in Ministerial Direction 69.

    Background

12. The applicant arrived in Australia from Pakistan on 22 June 2013 on a student Visa (TU573) which was valid until 30 September 2016. The applicant then applied for another student visa which was refused by the delegate on 7 December 2016.

13. The applicant is currently studying an Advanced Diploma of Leadership and Management which began on 14 August 2017 and is due for completion on 17 August 2018.

14. According to the applicant’s evidence and the evidence outlined in the Delegate’s Decision Record of 7 December 2016 the applicant first studied a general English program which, subsequent to 2 initial cancelled enrolments, was finished on 8 November 2013. The applicant then enrolled in a Bachelor of Business in November 2013 which was subsequently cancelled. The applicant then studied a Certificate IV in Business which was completed on 30 May 2014. He then enrolled in a Diploma of Management which was cancelled in November 2014. This was followed by an enrolment in a Certificate III in Light Vehicle Mechanical Technology which he did complete in February 2016. After another cancelled Bachelor of Business enrolment the applicant enrolled in a Certificate IV in Automotive Mechanical Diagnosis which he then went on to complete in November 2016. The applicant then studied a Diploma of Automotive Technology which he finished in June 2017 after two cancelled enrolments. The applicant then enrolled in a Bachelor of Business again in July 2017. This enrolment was subsequently cancelled.

    Circumstances in home country

15. The applicant finished high school at home in Pakistan and then went on to study for a Bachelor of Arts. After that he worked in his family kitchenware business for two years. The applicant testified that he decided to come to Australia because it was a good place to study business. The applicant acknowledged that he dropped out of his original bachelor level course in business because it was too hard. The tribunal is concerned by this evidence because the applicant stated that he originally came to study in Australia because of the value of business related courses and that he wanted to come to Australia to learn how to run a business; and that a bachelor level business course was the appropriate level of study to undertake. It is also noted that the applicant’s original student visa was granted in order to undertake a principal bachelor level course in accordance with student visa condition 8202. As the applicant dropped out of his Bachelor of Business course and then proceeded to undertake study in the VET sector the applicant was in breach of this visa condition. It is also noted that the applicant then went on to enrol in business-related bachelor level courses on several occasions, most recently on 31 July 2017. The Tribunal is concerned as this indicates that the applicant was unable to successfully progress a bachelor level course and so changed his approach to search for ongoing enrolments in low level VET courses to maintain his student visa. This indicates that the applicant was not a genuine student and did not intend to reside in Australia temporarily.

16. The applicant testified that he had considerable family back in his home country. This included parents, seven brothers, and four sisters. The applicant stated that he remained in regular contact through phone calls and social media. The Tribunal finds that this evidence was not adverse to the applicant.

17. The applicant testified that his family owned shops, a kitchenware factory business, and a motor cycle business. The applicant stated that in some form he part owned these businesses with his father and brothers. The applicant claimed that this property owned overseas did constitute a reason to return home to his home country. Property overseas is readily sold for cash, or indeed may never be sold and may instead produce income in the form of rent. The holding of such property is therefore not an effective incentive to cease residence in Australia. These businesses were being run for some years by the applicant’s family members and the applicant remained outside his home country. The Tribunal finds that this was not an incentive to remain in Australia temporarily.

18. The applicant stated that he had no issues of concern back in his home country based on any potential military service in the home country, or economic or political circumstances in the home country or civil unrest in the home country. The Tribunal finds that this is not adverse to the applicant.

    Circumstances and study in Australia, and the value of the course to the applicant’s future

19. The applicant stated that he lives in Dallas in Melbourne and pays rent with friends.

20. The applicant stated that he has been back to his home country twice for short visits since arriving here in 2013. The Tribunal is concerned by this evidence as it would suggest that the applicant is managing his personal relationships from Australia effectively over long periods and that it may indicate that the applicant does not intend to reside in Australia temporarily.

21. The applicant testified that although not working at this present point of time he has been working regularly at a cleaning company for the last three years and earning approximately $1000 AUD a fortnight, working approximately 19 hours a week. The Tribunal does not find this adverse to the applicant.

22. The applicant gave evidence to the Tribunal that he acknowledged that his initial enrolment in a Bachelor of Business was a mistake. The applicant stated that at some point during his study program here in Australia he decided to change from doing a higher Bachelor level business course to engaging in studies that would assist him in pursuing a career in vehicle and mechanical diagnosis and technology. The applicant stated that that is why he changed to studying a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. The applicant testified that this course of study would assist him when he went home to work in an automotive business. The Tribunal is concerned by this evidence as the applicant stated that he originally intended to successfully complete general business level courses. Even subsequent to studying these VET level courses in mechanical diagnosis he then went back to studying a Bachelor of Business which was subsequently cancelled. The applicant then enrolled in an Advanced Diploma of Leadership and Management which he is currently studying. The Tribunal finds that the applicant’s study plan was not coherently progressed with the applicant dropping out from higher-level courses to maintain student visas in lower-level certificate VE T courses.

23. In the applicant’s Statement of Purpose sent to the delegate (Folio 10) the applicant stated that he came here to work hard to get knowledge and higher education. He then asserted that Australian educational institutions would help him to achieve his goals to get “perfection in his field”. The applicant did not outline a coherent program to either develop general business level qualifications, or alternatively, learn good mechanical diagnosis and vehicle maintenance skills to open such a business back in his home country. The Tribunal is concerned that this form of study plan, the number and type of failed enrolments, the repeated enrolment in a Bachelor of Business course even as late as 2017, is not consistent with that of a genuine student who intends to reside in Australia temporarily. The Tribunal also finds that the applicant’s current enrolment in an Advanced Diploma of Leadership and Management is not assisting the applicant to learn either the high business level skills, or the mechanical diagnosis skills, that he needs to run his business back at home. The Tribunal finds that the applicant’s study record is instead indicative of a desire to maintain ongoing residence in Australia via the holding of student visas.

24. In his statement to the Tribunal dated 24 April 2018 (folio 30) the applicant’s representative, on behalf of the applicant, stated that the applicant aspired to complete both his technical and professional studies prior to returning to Pakistan to open his own automotive workshop. The applicant then goes on to explain in this statement that the completion of the Certificate IV in Automotive Mechanical Diagnosis and his Diploma of Automotive Technology illustrates that he is a committed student, and asks the Tribunal to allow him the opportunity to round out his Australian academic career. The Tribunal is concerned that adequate reasons for the applicant’s poor study record in his business courses, and his current enrolment in his Advanced Diploma of Leadership and Management were not addressed adequately in this statement. The Tribunal finds that the professional skills that the applicant stated that he was learning from his Advanced Diploma were not defined nor were they linked to his technical skills, and nor did they address how this would assist him in operating his own workshop on his return to his home country.

25. In his evidence to the Tribunal the applicant’s representative stated that the applicant had significant family support and great ties with Pakistan. The Tribunal is concerned that despite this stated considerable personal incentive to return home the applicant had not done so and in fact is seeking to prolong his stay here to engage in further study. The applicant’s representative also indicated that the applicant’s study was giving him good academic grounding. The Tribunal finds that this is not substantiated by the applicant’s poor study record, particularly the course cancellations and changes in study trajectory that are evidenced in this record.

26. 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).

    Conclusion on cl.500.212

27. 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.

28. 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

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

    Stephen Witts
    Member