RAZA (Migration)

[2019] AATA 3220

RAZA (Migration) [2019] AATA 3220 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahid RAZA

CASE NUMBER:  1715224

DIBP REFERENCE(S):  BCC2015/2172820

MEMBER:Gabrielle Cullen

DATE:5 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2019 at 3:31pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Federal Circuit Court remittal – genuine student – changed enrolment from vocational courses – travel between cities for studies – limited academic progress – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1 Item 1222, 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 applied for the visa on 29 July 2015. The delegate decided to refuse to grant the visa on 16 October 2015. 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 572 – 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).

3. The applicant arrived in Australia on 12 June 2013 on a subclass 572 visa valid to 15 March 2016. He departed Australia from 8 September 2014 to 8 November 2014 and applied for a subclass 572 visa on 29 July 2015 as he was enrolled to undertake a Bachelor of Accounting at Kent Institute[1]. He again departed from 25 December 2016 to 16 January 2017, 10 July 2017 to 15 August 2017, 4 December 2017 to 11 January 2018 and 1 September 2018 to 8 October 2018.

   [1] As outlined in the submission of the representative dated 4 February 2019.

4. Evidence from the Department decision[2] and that provided by the applicant at hearing and in documentation provided by the applicant, indicates the following study history.

   ·Enrolled in a Diploma of Business from June 2013 to January 2014 to be followed by a Bachelor of Business but transferred from the Diploma course in October 2013. As a result, his enrolment was cancelled in both the Diploma and Bachelor of Business.

   ·Enrolled in a Certificate III in Hospitality to study from 25 November 2013 to 23 November 2014 but changed courses in January 2014 and the COE was cancelled.

   ·Enrolled in an Advanced Diploma of Business from February 2014 to August 2014 and successfully completed this course.

   ·Enrolled in a Bachelor of Accoutring at GCA from 10 November 2014 to 30 June 2015. The evidence from the Department decision is that on 13 May 2015 he was sent a Notice of Intention to Cancel the Visa as it appeared he was enrolled in a course where the education provider at that time, Group Colleges was not an eligible streamlined provider for his subclass 573 visa. He transferred from this course to another Bachelor course in July 2015 and the Department decided not cancel his visa.

   ·Enrolled in a Bachelor of Accounting at Kent Institute from 13 July 2015 to 14 July 2017. The evidence indicates he ceased studying this course on 11 August 2016 and this was raised with him via s.359AA at the hearing. The evidence from Kent Institute dated 20 April 2016 submitted by the applicant to the Department indicates he was enrolled in this course from 13 July 2015 and was expected to finish on 14 July 2017. His academic record supplied by the applicant indicates he was exempted rom 10 subjects, passed 1/3 subjects in Semester 1/2015, 2/2 in Semester 2/2015 and was enrolled in 2 subjects in Semester 1 /2016. He submitted he only had 9 units to complete his studies.

   ·Enrolled in a Diploma of Accounting from 31 October 2016 to 29 October 2017 and again from 14 January 2019 to 10 February 2019 both with Sydney Metro College and successfully achieved this Diploma in February 2019.

   ·Currently enrolled in an Advanced Diploma of Leadership and Management from 4 February 2019 to 3 February 2020.

   [2] The Department decision was attached to the Application for Review.

5. On 1 September 2015 the applicant provided information following a request from the Department raising concerns. The applicant stated that he arrived in Australia to study a Diploma of Business and then a Bachelor of Business but was suffering from severe mental stress due to his wife’s medical condition. He claimed he was not doing well and did not obtain the support needed. He claimed he changed his provider and he then completed an Advanced Diploma of Business course at AITE and attached the Certificate of completion. He claimed he did not know what or who was an eligible provider for a streamlined visa and enrolled at GCA to undertake a Bachelor of Accounting. After he received a Notice of Intention to Cancel the visa from the Department as GCA was not a streamlined course provider he transferred to Kent Institute. He claimed he advised the case officer of the change and the Department subsequently decided not to cancel his visa. He claimed he wished to study an accounting degree as it will assist him in looking for a job. He claimed he completed part of the Association of Chartered Accounting in Pakistan and accounting is a great career. He noted many industries employ accounting professionals. He supplied information as to the benefits of studying in Australia and studying accounting in Australia for his future career. He provided a certificate evidencing successfully completion of the Advanced Diploma of Business in 2014 and evidence that his wife and child reside in Pakistan.

6. Medical Certificates were provided to show he was unfit for study/work from 6 September 2013 to 10 October 2013. He provided evidence of completing 3 accounting based exams in 2010/11 in Pakistan run by the Association of Chartered Certified Accountants, being in Financial Accounting, Management Accounting and Accountant in Business. He also provided evidence of employment in Sydney.

7. Concern was raised by the Department in a further letter that the applicant is now living in Canberra about 300kms from where he is studying and working in Sydney. On 21 September 2015 he advised that he uses the Murray bus service and a friend’s car on a regular basis to attend the College in Sydney. He also provided travel information and bills for travel by bus from his home in Canberra to Sydney to study. He submitted that his attendance is above 80%.

8. The delegate decided to refuse to grant the visa on16 October 2015. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate made this decision on the basis that the applicant was not enrolled from 18 August 2014 to 13 July 2015 and while he took into account he had medical issues he noted that the applicant had provided evidence of working from 31 August 2014 to 26 August 2015. He was also concerned he did not study at the subclass 573 level breaching condition 8516 and was concerned that in his time in Australia he had only completed an Advanced Diploma of Business.

9. The applicant applied to the Tribunal (differently constituted) on 28 October 2015.

10. He made written submissions on 1 April 2016 summarised as follows:

    ·He did not have a gap in study from 18 August 2014 to 1 July 2015 and was enrolled in a Bachelor of Accounting with GCA at that time. He attached an enrolment letter issued by GCA confirming this.

    ·He left GCA and went to Kent Institute to study a Bachelor of Accounting as he received a Notice of Intention to Cancel from the Department as the GCA was a non-SVP education provider. He attached information and the decision of the Department dating 17 June 2015 advising that they decided not to cancel his visa. He also provided articles as to the difficulties faced by students at the time with SVP and the Departments crackdown.

    ·He advised that he is studying the Bachelor of Accounting as it is related to his previous study in Pakistan where he completed part of the Associated Chartered Certified Accountants in Pakistan. He claimed once he completes his degree he will be eligible to complete his CA/CPA qualification recognised by Australia and earn on average more than $5,000 per month. He provided evidence of completion of three courses in Pakistan in 2010/2011.

    ·Though he lives in Canberra he claimed he has no issue attending classes at Kent Institute in Sydney.

11. On 1 April 2016 he provided his academic transcript and information from Kent College as to his enrolment, academic record and exemptions outlined above. He also provided medical certificates indicating he suffered severe anxiety impairing his mental and physical health and was unfit to work and study from 15 March 2016 to 31 May 2016 and 24 February 2016 to 25 February 2016. An ECG was also provided that was borderline abnormal.

12. The applicant attended a hearing at the Tribunal (differently constituted). On 12 July 2016 the Tribunal (differently constituted) affirmed the delegate’s decision.

13. On 7 June 2017 the Federal Circuit Court ordered that this matter be reconsidered as the Tribunal (differently constituted) erred on the basis of irrationality or a misunderstanding of the test applied and did not consider information submitted as to the applicant’s circumstances in his home country.

14. On 20 December 2018 the Tribunal wrote to the applicant and invited him to attend a hearing on 8 February 2019.

15. In a statement by the applicant dated 7 February 2019 he claimed that he is enrolled in an Advanced Diploma of Business, he has always had the intention of complying with his studies, there have been no gaps in his studies, he undertook different courses to improve his job prospects in Pakistan, he has strong family ties in Pakistan with his wife, 5 year old daughter and five month old son living there, his wife has a degree in teaching and he has good prospects of a job and life in Pakistan, he has sufficient funds to compete his course and he does not intend to apply for a further visa to stay in Australia.

16. Submissions dated 7 February 2019 and 4 February from the representative are summarised as follows:

    ·He outlined problems with the previous Tribunal’s decision (differently constituted).

    ·He provided a COE showing current enrolment in an Advanced Diploma of Leadership and Management at the Australis Institute of Technology and Education from 4 February 2019 to 3 February 2022.

    ·He provided evidence of subjects achieved by the applicant in the Diploma of Business in Sydney College to 13 November 2017 and from January to February 2019.

    ·He provided certificates of past education achievements and enrolments as submitted previously and outlined above.

    ·He provided medical certificates showing the applicant was unfit for work and study from 20 May to 3 June 2015 and in 2013 as submitted previously and outlined above.

    ·He submitted that the courses undertaken by the applicant are interrelated and are of great benefit to him regarding the job market and employer expectations in Pakistan. He submitted they are also relevant to his previous qualification in Pakistan.

    ·He submitted that the Bachelor of Accounting undertaken by the applicant is related to his previous study in Pakistan. He submitted that if the applicant completes his Bachelor of Accounting he will be able to earn up to $5000 per month.

    ·He submitted that the applicant has always been genuine. He completed three semesters at Kent after completing the Advanced Diploma of Business. He repeated submissions previously made as to the applicant’s past study.

    ·He submitted that the delegate placed too much emphasis on the applicant living in Canberra and studying in Sydney.

17. The applicant appeared before the Tribunal by video on 8 February 2019 to give evidence and present arguments. His representative attended the hearing. The Tribunal hearing was conducted with the presence of an interpreter in the Hindi and English languages, although the applicant spoke in English.

18. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

19. The representative corrected that in the letter from the applicant dated 7 February 2019 it should have stated that the applicant was enrolled in aa Advanced Diploma of Leadership and Management not Advanced Diploma of Business.

20. The applicant said he did not work in Pakistan.

21. As to his study in Pakistan he provided confusing in evidence. He initially stated that after completing 12 years of education he then undertook a two year Bachelor of Arts and then undertook the subjects with the Association of Chartered Certified Accountants (ACCA) in Pakistan. He said in the in Bachelor of Arts he mostly studied subjects in economics and accounting. He said he completed the Bachelor of Arts from 2009 to 2011 and the Tribunal questioned this when the certificate for the subjects for ACCA where dated in 2010/2011. He said he also completed a 4^th subject with ACCA in 2013. The Tribunal noted there were only certificates for 3 subjects and these were undertaken in 2010/2011. He said he enrolled with ACCA in 2009 and did his degree part time. He then said he finished school in 2007 and had achieved 12 years of education. When the Tribunal asked what he did between 2007 and 2009 he changed his evidence and said he only finished 10 years of education in 2007 and finished 12 years in 2009. The Tribunal questioned this as inconsistent with his previous evidence and noted he would have been 21 at that stage, born in 1988, and school begins in Pakistan at 5/6 years so 12 years would have been completed in 2007.

22. The Tribunal discussed with him his study in Australia. He said he came to Australia to study a Diploma of Business and then a Bachelor of Business in Sydney. He said he was studying in Sydney. He said he withdrew at the end of 2013 and had attended for one semester. When asked why he withdrew he said his class fellows moved to Sydney and he started cookery. The Tribunal questioned his reason for changing the course when he had said he was studying the Diploma of Business in Sydney. It questioned why he would stop studying this course in Sydney if he wanted to move to Sydney with his fellow class mates.

23. The Tribunal noted it accepted his evidence he successfully complete the Advanced Diploma of Business in 2014 as claimed, then enrolled in the Bachelor of Accounting at GCA and changed to study at Kent Institute for the reasons he claimed. It asked him the outcome of his enrolment in the Bachelor of Accounting at Kent Institute and he said that he was told why he could not continue to study because of his visa and left in 2016. The Tribunal questioned this as he had been on a bridging visa for most of the time studying this course, when he applied for a student visa. It questioned if he was able to study at Kent Institute on a bridging visa in the past why he would not continue to study and complete the course.

24. He said he then completed a Diploma of Accounting except for a few assignments in 2017 and then began the Advanced Diploma of Accounting in 2018 but only completed two semesters as he had to return to Pakistan as his wife was having their second child and was not well. He said he returned to Pakistan from September to October 208. He said he then enrolled to complete the Diploma of Business in January/February 2019 as he still had some assignments outstanding and is now enrolled in an Advanced Diploma of Leadership and Management.

25. The Tribunal asked why he came to study in Australia and he said to improve his job prospects for employment in Pakistan. He said a good education and good English help.

26. The Tribunal raised via the process outlined in s.359AA information from PRISMS records indicating that the evidence from those records indicates he notified to cease enrolment in the Bachelor of Accounting at Kent Institute on 11 August 2016, he never commenced the Advanced Diploma of Accounting with the result his enrolment was cancelled and the information indicates he was not enrolled from October 2017 to January 2019. It outlined the relevance of the information and the consequence of relying on it. The applicant responded at hearing and was also given time to 20 February 2019 to provide a written response.

27. He repeated that he completed two semesters in the Advanced Diploma of Accounting. The Tribunal asked which subjects he studied and completed and he said in law and management. The Tribunal asked for more detail about the subjects as it appeared vague and raised its concerns and in response he said he would provide evidence of having attended the course. The Tribunal asked if he sought a deferment and he said he did.

28. The Tribunal asked him about the course he is currently enrolled in, the Advanced Diploma of Leadership and Management. He said he is doing the course to improve his leadership and management. The Tribunal asked him what subjects he is enrolled in as the course began on 4 February 2019. He said he attended class on Monday but did not know the subjects. He said he had to complete 12 subjects. The Tribunal asked if he had researched the course before commencing it and he said he had not. The Tribunal raised concerns in this regard.

29. As to his work in Australia, he said since July 2016 he has worked 20 hours per week in a consultant company and before at a service station. The Tribunal questioned why he was able to work in 2017/2018 but did not complete or attend the Advance Diploma of Accounting if his aim is to work in the accounting area. He said he was attending classes but stopped when he travelled to Pakistan in September 2018 for the birth of his child. The Tribunal asked why he would not then continue studying the Advanced Diploma of Accounting on his return if his aim is to be an accountant, had finished two semesters and questioned why he would start a new course.

30. The applicant outlined his recent trips to Pakistan as outlined above to be with his family. As to family living in Pakistan, he said his wife and two children are in Pakistan and he has no family in Australia. He said he will inherit his father’s property and his wife has property.

31. He said he had no military commitments in Pakistan or political and civil reasons which would act as a disincentive to return.

32. The Tribunal referred to the medical evidence he had submitted and noted that there is no evidence since 2015. He said he suffers homesickness and back pain and received treatment when he returns to Pakistan.

33. The Tribunal raised a number of concerns as to his claims. It noted that he had been in Australia for 5 ½ years, arriving on a subclass 573 visa and only completed two courses at the vocational level. He said it was his intention to compete the Bachelor of Accounting but stopped when advised he could not study at GCA and then when his visa was refused and Kent Institute told him he could not study there anymore.

1. The Tribunal questioned why if he wants to be an accountant he is studying leadership and management. He said it is a good degree and will be beneficial in him obtaining a good job on return. The Tribunal questioned the benefit of a further Advanced Diploma similar to the one he had already achieved. He said he was going to complete the Bachelor of Accounting but was prevented from doing so by the education provider.

2. He said he will provide further documents to show he studied the Advanced Diploma of Accounting and to answer other concerns raised by the Tribunal. He was given to 20 February 2019 to provide a written response to the s.359AA matters raised and any other matter he considered relevant.

3. On 20 February 2019 the applicant provided the following documents which his representative claims show that the applicant’s studies in Australia are related to his studies in Pakistan and there is sufficient incentive for the applicant to return to Pakistan after completion of his current course.

   ·Business card and other information relating to the applicant’s family business in Pakistan called Haji Abdul Rasheed Traders in Multan, trading in all kinds of wood.

   ·Sale deed for residential plot in Multan dated 25 April 2018 with the seller named as Naveed Ahamad and purchaser as Maria Yaseen, being the applicant’s wife.

   ·Sale Deed for residential plot in Multan dated 26 December 2017 with the seller as Muhammad Aslam and the purchaser as Maria Yaseen, the applicant’s wife.

   ·Letter from the School of Sciences dated 5 February 2019, Multan appointing the applicant’s wife as Vice-Principal and outlining terms and conditions of the appointment.

   ·Additional letter from The School of Sciences dated 8 February 2019 noting the applicant’s wife has been working there as an English teacher and administrator since 8 January 2016. It outlines her positive attributes.

   ·Letter from Defence Housing Authority Lahore dated 12 February 2019 noting the applicant’s wife, Ms Maria Yaseen was allotted a residential plot in Multan and noting she will be the sole owner of the plot.

   ·Statements of Results for the Diploma of Accounting from Sydney Metro College dated 28 January 2019 and 13 November 2017.

   ·Information relating to the Association of Chartered Certified Accountants in UK and the applicant’s registration card dated 6 October 2009.

   ·Letter of Progress from Kent Institute relating to the Bachelor of Business dated 20 April 2016.

   ·Confirmation the applicant achieved the Advanced Diploma of Business from February 2014 to August 2014.

   ·Evidence as to the applicant’s course progress for the Bachelor of Arts dated 4 August 2012.

   ·Evidence of travel from Sydney to Canberra from 2015 to 2018.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572 as the applicant is enrolled to study an Advanced Diploma of Leadership and Management.

5. The issue in the present case is whether the applicant 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)         …

6. In considering whether the applicant 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.

7. 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. In making the decision the Tribunal has considered all the evidence before the Tribunal with regard to the applicant’s circumstances and immigration history, and all matters as outlined in Direction No. 53 and any other matters it considers relevant.

8. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

9. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to Pakistan. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts his evidence as to the benefits of a foreign degree and study on return to Pakistan. The Tribunal accepts that he has very close family ties in Pakistan, including his wife, two children and parents. It accepts he has closer family ties in Pakistan and these indicate a significant incentive to return. It accepts the evidence he will inherit his father’s property. It accent’s the evidence his wife owns numerous properties in Pakistan and that she has recently been appointed as Vice Principal at a School in Multan. It accepts that his family own a business in Pakistan.  It accepts that his circumstances in Pakistan are indicative of a person who is only a temporary entrant who has a significant incentive to return to Pakistan.

10. The Tribunal also accepts that the applicant is enrolled to study an Advanced Diploma of Leadership and Management from 4 February 2019 to 3 February 2020. It accepts he previously successfully completed a Diploma of Accounting, studying in 2017 and then again in January/February 2019, and an Advanced Diploma of Business in 2014. It accepts he was enrolled at GCA studying a Bachelor of Accounting from November 2014 to June 2015  The Tribunal makes no adverse finding as to his enrolment with a non-SVA provider, being GCA, in  2014/2015 or the Notice of Intention to Cancel his visa issued in 2015 as the Department made the decision not to cancel the visa. It accepts he was continuously enrolled from his arrival in June 2013 to when he ceased studying the Diploma of Business in October 2017 and accepts he has been enrolled in a course of study from January 2019 to date. However, the successful completion of courses and enrolment in the periods above are two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

11. The above information indicates the applicant has been in Australia since June 2013 when he arrived on a subclass 573 student visa, a period of over 5 ½ years.. While the Tribunal accepts that he has had a matter before the Tribunal/Federal Court, the Tribunal views his extended length of stay in Australia only successfully completing two vocational courses after arriving to study a tertiary course as of concern. While it accepts he completed subjects in the Bachelor of Accounting course it views as of concern his lack of completion of any course at the tertiary level while the holder of a subclass 573 visa.

12. The Tribunal has considered his reasons as to his slow rate of course progress, whether he is a genuine student and why he wishes to study the Advanced Diploma of Leadership and Management. However for the reasons set out below the Tribunal finds that he proposes to study this course to prolong his stay in Australia rather than for its value to his future or to enhance his future career or for any of the reasons claimed.

13. Firstly, despite claiming that he is in Australia to study the Tribunal views as of concern his lack of study from October 2017 to January 2019. While the applicant claims he was enrolled to study the Advanced Diploma of Accounting from November 2017 to November 2018 and completed two semesters before travelling to Pakistan in September/October for the birth of his child; as raised with the applicant via the process outlined in s.359AA PRISMS records indicate he did not commence this course and enrolment was cancelled in January 2018. In response the applicant claimed he was enrolled, studying and completed 2 semesters and would provide evidence of studying and deferring to attend the birth of his child in September /October 2018. He was given time to do so after the hearing, however has failed to provide any evidence of attending, studying, completing subjects or deferring as he claimed. The Tribunal also notes that when he was asked about subjects he studied in the Advanced Diploma of Accounting; he said in law and management. When the Tribunal asked for more detail about the subjects his answers were vague. The Tribunal is of the view if he had attended and completed two semesters, he would have been able to provide oral evidence of subjects undertaken and other written evidence he claimed he would after the hearing. The Tribunal views his lack of studying and achieving course progress, being not enrolled as claimed in 2018 in the Advanced Diploma of Accounting as of concern. It is of the view a genuine student would continue to study and achieve course progression. It is of the view this adds to the finding he is using the student visa program to maintain migration in Australia.

14. The Tribunal also views as of concern why he did not complete the Bachelor of Accounting at Kent Institute. He claims that this was because the education provider ceased his enrolment due to the refusal decision. However as raised with him via s.359AA PRISMS records indicate that on 1 August 2016 the applicant notified cessation of studies. Despite being given time, after the hearing, no evidence was provided by the applicant to indicate the school ceased his enrolment. The Tribunal is of the view if the applicant is a genuine student he would have completed the Bachelor of Accounting considering his claims previously as to the importance of obtaining this degree for his future career in Pakistan. It views the applicant ceasing studying this degree as evidence he is not a genuine student and using the student visa to maintain migration in Australia.

15. The Tribunal also views as of concern the applicant’s lack of knowledge as to the Advanced Diploma of Leadership and Management which he is currently enrolled in. The Tribunal asked him what subjects he is enrolled in as the course began on 4 February 2019. He said he attended class on Monday but did not know the subjects. He said he had to complete 12 subjects. The Tribunal asked if he had researched the course before commencing it and he said he had not. While the Tribunal accepts he knows the number of subjects he needs to complete to achieve the Advanced Diploma, the Tribunal views as of concern his lack of knowledge as to subjects he is enrolled n and his lack of research of the course. The Tribunal views his lack of knowledge of the course, in particular the names of the subjects he is enrolled in and his lack of research of the course as undermining his claim he is a genuine student and studying for the reasons he claims.

16. The Tribunal is therefore of the view that the applicant is using the student visa to maintain migration and has enrolment in the Advanced Diploma of Leadership and Management to maintain residence and is not a genuine applicant for entry and stay as a student.

17. As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before June 2013 or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.

18. In making the decision the Tribunal has considered all the evidence before it , including that he is currently enrolled, has completed the courses he claims, has stronger family ties in Pakistan than Australia, his evidence he will return home after the completion of his course, , he will inherit his father’s property and all the other evidence he has submitted; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

19. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

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

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

    DECISION

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

    Gabrielle Cullen
    Member