Rehman (Migration)

[2016] AATA 4906

Rehman (Migration) [2016] AATA 4906 (29 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Rehman

CASE NUMBER:  1507087

DIBP REFERENCE(S):  BCC2015/809902

MEMBER:Adrian Ho

DATE:29 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 29 August 2016 at 2:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 – Not a genuine temporary entrant – Second student application – Drop from masters to VET level – Vague future career plans – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl.572.223(1)(a)

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 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 to the Department of Immigration for the visa on 12 March 2015. The delegate decided to refuse to grant the visa on 7 May 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 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The applicant was represented in relation to the review by his registered migration agent.

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations.

5. The applicant appeared before the Tribunal on 24 August 2016 to give evidence and present arguments.

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

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

   Subclass 580

9. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

10. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

11. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    Genuine Temporary Entrant

12. A major issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

13. 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.

14. 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.

15. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

    The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

16. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant had reasonable explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers (see written statement on Department file);

    b.The applicant has close family members and friends outside Australia, which as of his recent marriage in 2016 in Pakistan, now includes his wife;

    c.The applicant is the eldest son and has attendant responsibilities towards his parents and family in Pakistan;

    d.The applicant does not have close family members in Australia;

    e.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia.

17. As suggested to the applicant, and based on his evidence, it is of concern to the tribunal that despite suffering the trauma of his cousin have been burned to death by her husband in January 2012 he went on to apply for his first student visa in 2013 in circumstances where he might reasonably have anticipated that he was not personally in a position to focus on the task of studying successfully.

18. He gave evidence that he graduated from university with a bachelor of business administration in Pakistan in 2010, and went on to work as an assistant accountant and also to help manage his father’s business which took in 5 engineering workshops, one of which was in Dubai, before coming to Australia.

19. The applicant gave evidence that he in fact sought his first student visa, and proposed study in Australia, in order to escape from the effects of the trauma of his cousin’s death.  The tribunal mildly suggested to the applicant numerous times that student visas were not ordinarily granted for that purpose.

20. What transpired, on the applicant’s evidence, is a comprehensive failure by him in the master’s of professional accounting course he proposed for his student visa from 2013 to the end of 2014, when the course was scheduled to conclude.  During that time the applicant started seeing a psychologist who concluded he had moderately severe PTSD in 2013 which was later gradually improving (see f.46, front and reverse).

21. The applicant claimed at hearing that he was unaware that seeking a deferral from his education provider was an option.  The tribunal suggested that basic enquiries of campus staff should have been sufficient to reveal this option to him and suggested that if the applicant remained ignorant of the option that might largely be attributed to a lack of interest in exploring options to relieve the burden the study in a difficult time.

22. On the evidence, as suggested, the applicant came to Australia on a student visa at least in part to escape the environment in which he had experienced the trauma of his cousin dying in very violent circumstances.  As suggested, the tribunal considers he ought to have anticipated that he was proposing to study in circumstances where he knew he might not succeed in study. 

23. He did not succeed and as suggested, the tribunal finds this to be unsurprising. 

24. By March 2015 the applicant’s 573 visa was to expire.  As suggested, given his poor performance, he might have considered it prudent to take a break from study until such time as he felt ready, especially in light of his psychologist’s observations that his improvement was gradual (f.46).

25. Instead of taking a break, and perhaps returning to Pakistan for convalescence, the applicant sought to stay on in Australia.  Made the visa application now the subject of this review and proposed a VET sector diploma and advanced diploma of management.

26. A long discussion took place at hearing in which the tribunal put numerous times to the applicant that it saw little value in the applicant studying the VET sector diploma of management and advanced diploma of management, given that he was a university graduate from Pakistan with a bachelor of business administration before ever coming to Australia.

27. The applicant sought to have the tribunal find that the Pakistani university degree was of little value compared to Australian vocational qualifications.  The tribunal expressed doubt on this score numerous times.

28. As suggested, the tribunal considers the university degree and course to be at a higher level than study at the vocational or TAFE level.  As suggested the university degree course is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges in one’s chosen field. 

29. At length, the applicant claimed that he chose VET sector management so as to build is confidence.  The tribunal again mildly suggested that through factors described in Direction 53 the student visa was intended for students to study something of demonstrable value to their future, and not granted for students to study courses the value of which lay in the building of personal confidence.

30. On the evidence, the tribunal is not satisfied that the study proposed with the visa application held any demonstrable value over and above the bachelor study leading to the applicant become a university graduate. 

31. The applicant had a very definite choice when his student visa was to expire in 2015 and it was suggested to him that if he lacked personal confidence he might have chosen to return to Pakistan and to seek a further student visa at a time when he felt ready to study something in Australia which had demonstrable value to his future goals.

32. In any event, he did not.  He proposed further stay and proposed a significant drop in study level from the master’s level, through the bachelor’s level, which he had already attained before coming to Australia, to the VET sector. 

33. As suggested, the tribunal sees no value in the agent’s observation that there is no study pathway from the VET sector to the master’s of accounting course.  This only further underlines the low level of study proposed by the applicant.  As suggested, the ‘pathway’ to the master’s course is not VET sector study in the first place, it is the applicant’s bachelor’s degree from Pakistan which provides him with the basis of entering the master’s course.

34. For all of these reasons, as suggested, the tribunal considers the applicant saw greater value in prolonging his stay in Australia than in the VET sector courses he was proposing and greater value in stay on in Australia than in taking a break from study to recuperate from his PTSD, which his psychologist noted was healing gradually.

35. As suggested, the tribunal finds it unsurprising that the applicant has successfully completed the diploma of management because, as already noted, that course is at a level clearly below the attainments of his bachelor’s degree.

36. His agent asserted that it was always the applicant’s intention, after gaining confidence in the VET sector, to proceed back to the master’s course he had failed.  The tribunal observed that if that was his intention, he gave no indication of it in his written statement to the Department (DIBP, f.22).  As suggested, in that statement the applicant extols the virtues of the ‘renowned’ VET sector provider he chose and links the proposed management study to his interest in management and in setting up his own business.

37. The applicant gave a copy of the delegate’s decision to the tribunal in which the delegate questions the value of the VET sector study proposed.  It is only after that doubt, expressed by the delegate, that the applicant proposed to return to master’s level study.

38. As suggested, the tribunal considers the applicant has once again proposed master’s level study in order to redress the concerns expressed by the delegate.

39. The applicant gave evidence that he was very particular about completing a master’s of professional accounting, and not another accounting master’s course.  As suggested, the tribunal found this difficult to understanding because in his oral evidence he confirmed that his career goals were no more specific than that he wished for a ‘higher job’.  He said that he would figure out his career goals after he obtained his master’s in professional accounting.  He claimed that there was no  master’s in professional accounting course in Pakistan, but conceded that one could pursue registration and practice as an accountant in Pakistan and noted that his younger brother was currently pursue professional accounting accreditation in Pakistan, which he himself had not thought to do earlier in his career.  Based on his own evidence, the tribunal finds that whether to open a business or for a ‘higher job’ it is possible for the applicant to pursue professional accounting accreditation in Pakistan, without a master’s of professional accounting degree.

40. The tribunal accepts the applicant married his wife in Pakistan in January 2016.  That visit to Pakistan followed his first visit in October 2014. He gave evidence his wife lives with his family and has a master’s in economics, is not working, and their first child is due in November.  The tribunal considers that ordinarily a spouse and expectant child outside Australia would constitute a strong incentive for the applicant to leave Australia. 

41. However, as suggested, the tribunal cannot give this factor the weight ordinarily due to it.  He claims he has no plans to bring his wife to Australia and that it would be too expensive for him to support her and their child here.  As suggested, the applicant has only recently married his wife and at all times while he held bridging visas.  It is the case that at all times his wife has not been in a position to meet secondary student visa criteria because at all times since their marriage he has not been the holder of a student visa (see secondary student visa criteria).  Put simply, the applicant has not yet had any opportunity to bring his wife onshore and greater weight would have been accorded this consideration in circumstances where the applicant’s wife had had the opportunity to seek a dependent visa but nevertheless had not.

42. In any event, if as claimed, there is no intention for the applicant’s wife to join him in Australia, she and their unborn child constitute distinct incentive over and above the other incentives noted above for the applicant to return to Pakistan and pursue a master’s degree there, as his wife has done, and also to pursue professional accounting accreditation, if he wishes, as his brother is doing, so as to either gain a ‘higher job’ as he claimed at hearing, or to start his own business, as he claims in writing at DIBP file f.22.

43. For all of these reasons, the tribunal finds that the applicant sought his first student visa in circumstances where he was not ideally positioned to succeed at study and sought his second student visa to study in courses of very little value to a vague future career/business plan. 

44. The applicant’s proposal for further stay and study in Australia in circumstances where he is recovering from PTSD and not ideally placed to succeed at master’s level, and now has an expectant wife in Pakistan, where as she has shown, there is ample opportunity for him to pursue master’s level study, suggest that he will not yield to the array of incentives he has to leave Australia, but rather intends to stay on in Australia and to bring his wife, now his closest personal connection, onshore when and if he holds a substantive student visa.

45. 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 the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

46. 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

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

   Adrian Ho
   Member