Riaz (Migration)

[2018] AATA 5572

Riaz (Migration) [2018] AATA 5572 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Tahir Riaz

CASE NUMBER:  1822952

HOME AFFAIRS REFERENCE(S):           BCC2018/2479113

MEMBER:Mark Bishop

DATE:26 November 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 26 November 2018 at 1:39pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – academic progress since 2015 – value of proposed studies to future employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2018 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 2 July 2018. 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 intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 26 November 2018 to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration visa and study history in Australia. The decision record contained detailed extracts from the applicant’s PRISMS record.

6. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

7. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

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

9. 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?

10. 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.

11. 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.

12. On 17 October 2018 the Tribunal wrote to the applicant and requested he provide the following information at least 7 days prior to the scheduled hearing date:

    ·A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.

    ·Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

    ·We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

    Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction

    No.69.

13. Prior to the review hearing the applicant did not respond to this request for information.

14. The applicant provided a brief GTE Statement to the Department. It outlined the following:

    ·He is thrilled to start a Diploma of Business as such course is designed to uplift a broad range of general business and management skills. Previously he had studied in the area of Accounting;

    ·He knows ALTEC College;

    ·After Melbourne he really loves Tasmania. Hence he had decided to study at the Hobart campus of ALTEC;

    ·He has strong ties of family in his home country as his father and brother successfully run a family business. He can pay all tuition fees and living expenses with the help of family.

15. The applicant provided evidence of completion or graduation of the following courses to the Department:

    ·Diploma of Accounting dated 11 January 2013;

    ·Advanced Diploma of Accounting dated 12 July 2013;

    ·Bachelor of Accounting dated 15 May 2015.

16. At the review hearing the applicant provided additional material to the Tribunal as follows:

    ·COE in a Diploma of Leadership and Management commencing July 2018 and concluding July 2019;

    ·Material relating to enrolment in a CRICOS registered course in Tasmania and statement of intent to apply for a regional 489 visa after completion of his Diploma;

    ·Genuine Temporary Entrant statement outlining studies in Australia to date, future intent, choice  of education provider and reasons for choosing Tasmania;

    ·Academic record of studies in Australia;

    ·Copies of job application whilst holder of a Temporary Work visa.

17. The applicant has been continuously resident in Australia since January 2010. In an almost nine year period he has provided evidence of completion of two Diplomas in Accounting leading to the completion of a Bachelor of Accounting in May 2015. In evidence the applicant advised he had not completed or graduated from any other course since May 2015 until the present time.

18. The applicant was granted his initial Student visa (TU 572) offshore on 30 September 2009 valid until 15 March 2011. The applicant arrived in Australia on 3 November 2009. He has been resident in Australia since that time as the holder of three Student visas, one Graduate Work Stream (VC485) and associated Bridging visas. The applicant’s Temporary Graduate Work visa was granted from 5 November 2015 until 5 May 2017. The applicant was granted a further Student visa on 21 July 2017. Thereafter the applicant enrolled in two courses a Diploma of Leadership and Management that were cancelled on 2 June 2018 due to “non-payment of fees” and a Diploma of Business that was cancelled on 20 July 2018. The applicant did not advise of any other attempts to enrol in alternate courses or at alternate education providers in this period of study inactivity from October 2017 until July 2018.Thereafter the applicant enrolled in a Diploma of Leadership and Management that commenced on 9 July 2018. This course is scheduled to conclude on 7 July 2019 bringing the applicant’s period of residence in Australia to almost ten years. The applicant provided a copy of a written statement to the Tribunal that he enrolled in this CRICOS registered course in Tasmania because so he “can apply for regional 489 visa after completion…”

19. The applicant advised he applied for employment as an accountant and as an intern in the 18 month period as a holder of a Temporary work visa. He did not obtain work in this period. He did not gain any experience as an accountant. He did not gain employment in this period. He continued work as a taxi driver or Uber driver.

20. In evidence the applicant advised he had not been engaged in any study in the period October 2017 until 9 July 2018. The applicant advised he had been enrolled in NTCA in King St in a Diploma of Leadership and Management. The applicant advised he did not complete that course. The applicant advised he was unable to provide any Statement of Attainment in this course. The applicant advised he was unable to provide any transcripts of subjects or units studies in this course. The applicant advised his course enrolment in the Diploma of Leadership and Management was cancelled by the education provider for reason of “non-payment of fees”. The applicant applied for a release letter. The education provider refused to provide the release letter. The applicant advised he stopped studying in October 2017. He did not re-commence study until July 2018.

    The applicant advised he had not been working in his profession or studying in an approved course from approximately May 2015 until July 2018. The applicant advised he attempted to open his own business of cleaning and gardening and this was a failure. He did not provide any evidence of this endeavour such as a business registration name or certificate of registration of a sole trader. The applicant advised he was driving a cab for about 18 months or two years. The applicant advised from November/December 2017 he drove an Uber car. The applicant advised he earned about $800 per week as a taxi driver and marginally less as an Uber driver. The applicant advisd he received approximately $1,000 per month from his family in Pakistan and had been receiving this sum since June 2018.

21. The applicant advised he gave extensive consideration to applying for permanent residence. The applicant advised his study in English, Accountancy and work experience were not sufficient to gain points for permanent residency as the rules had changed. As outlined above in paragraph 18 the applicant provided a copy of a written statement to the Tribunal that he enrolled in a CRICOS registered course in Tasmania so he “can apply for regional 489 visa after completion…”  The applicant advised he wished to join his family business of real estate brokers in Pakistan in 3-5 years after completion of an MBA. He would be employed as a sales person.

22. The applicant advised he was currently enrolled in a Diploma of Leadership and Management scheduled to conclude July 2019.

23. Ministerial Direction Number 69

24. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

25. The Tribunal considers cl.9 and 10 of MD69 the applicant’s circumstances in his home country.

26. The applicant advised he had been employed in a call centre in Pakistan for three years post-secondary school and spent two years in University preparation and university study in a Bachelor of Business Administration prior to coming to Australia. He had been a student at IQRA University in Pakistan. The applicant described this university as equivalent to Monash University or RMIT. He advised it was a highly regarded, reputable university with competitive entry standards.  

27. The applicant is an unmarried, almost 33 year old man who first came to Australia in November 2009 at the age of 24. He has completed a Bachelor degree in Accounting (plus prior Diplomas in Accounting) in his nine years of residence to date in Australia.

28. He came to Australia because he wished to study and live in a part of the western world. His academic progress generally has been minimal and non-existent post 2015. He has ties to Pakistan of family. His father’s business interests are minimal extending to a small real estate broking firm employing five people. He receives regular large remittances from Pakistan that supplement his significant income from employment in Australia. He advised the Tribunal that until July 2018 he had been regularly continuously employed in Australia earning an income of $500 to $800 per week. His parents fund his tuition costs. He is not currently permitted to work in Australia. He advised he holds no business holdings or business interests in his home country. He maintains contact with family and friends via social media and advised the Tribunal this was satisfactory.

    The applicant advised he had been enrolled in a reputable university in Pakistan in an under graduate degree, and came to Australia because he wanted to study and live in a western country. He did not relate his study in Australia to future employment or a future career. His evidence and written submission was general in nature. He advised he thought it most likely he would gain employment as a sales person in his father’s real estate firm. He did not explain the relationship, if any, of his studies in Accounting or proposed studies to employment in his father’s firm. The applicant acknowledged similar courses were available in his home country. He advised he would pursue Master level study in Pakistan sometime in the future in an allied field to his studies in Australia.

29. The Tribunal is of the view the applicant does not have reasonable grounds for not undertaking study in his home country.

30. The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.

31. The applicant advised he had been engaged in part time work since his arrival in Australia. His parents paid his tuition fees and sometimes contributed to his living costs. He has no family in Australia and generally lives in share houses in Melbourne and Hobart. He advised he has a small network of friends in Australia. He advised he attends mosque every Friday and participates in community and social outreach activities associated with his faith to those in need.

32. The Tribunal is of the view the applicant has established a well-ordered and well-structured life for himself in Australia. That life extends to employment, study and community. That life is well financed, partly from significant earnings in Australia and partly from remittances from Pakistan. The applicant has been the holder of numerous visas in Australia that have permitted him to lawfully work and study. In July of this year he applied to study a CRICOS registered course in Tasmania so he could apply for a further visa to continue residency in Australia. Notwithstanding his later written submission received on the day of the hearing the Tribunal is inclined to the view the applicant wishes to stay as a resident in Australia for the foreseeable future.

33. The applicant advised he did not have any military service commitments in his home country and was not aware of any political or civil disturbance in his home country.

34. The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.

35. The Tribunal is inclined to the view the applicant issuing the student visa program to circumvent the intentions of the migration program and is being used to maintain ongoing residence.

36. The applicant explained to the Tribunal that he wished to undertake study in Leadership and Management as a precursor to further study in the future at Master level in his home country. He similarly explained it was most likely he would pursue employment in his father’s small firm as a salesman. Irrespective of his future the applicant did not outline in any significant detail the relationship between his proposed course and future employment or future remuneration.  The applicant’s reasons for studying a Diploma in Leadership and Management in the VET sector in Tasmania related to a future managerial position in his family’s business, motivation of self, delegation of tasks to others, management of projects and management of groups of people in a variety of contexts, sectors and industries. The Tribunal understands these types of roles and functions can have application in a medium sized or larger organisation that has degrees of control, supervision, responsibility and hierarchy. The applicant did not explain how this type of study related to possible future employment as a sales person in a very small real estate broker employing five persons inclusive of support staff.

37. The applicant has completed Diplomas and Degrees in Accounting in Australia. He is appropriately qualified to pursue employment in his chosen profession. The applicant was nearly fluent in English. The Tribunal is inclined to the view the applicant has a set of skills that enable him to gain employment in his profession in Australia or Pakistan or elsewhere in the world. The applicant now seeks to pursue study in a VET level course in Tasmania. The applicant did not pursue such study in the period October 2017 until July 2018 when he had the opportunity to complete or nearly complete his optional VET level studies. He did not seek to enrol and was not enrolled in courses in this period after his education provider cancelled prior enrolments around July to October 2017.

38. The Tribunal is of the view the applicant is seeking to undertake a course that is not consistent with his current level of education. The Tribunal is of the view the applicant will most likely obtain employment in his father’s real estate business in Pakistan. The Tribunal doubts the acquisition of a VET level qualification in Leadership and Management carries much utility in Pakistan. The applicant did not lead any evidence this was the case. The applicant did not lead any evidence that he would gain any credit from his proposed VET studies in Australia in a future enrolment in a Master level degree in Pakistan. The applicant already has Bachelor level qualifications in a professional field. The Tribunal is of the view the proposed course will not assist the applicant to obtain employment in his home country. The Tribunal is unable to determine there is much relevance of the proposed course to the applicant’s past or proposed employment in either his home country or a third country.

39. The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.

40. The Tribunal has considered the applicant’s migration and visa history. The Tribunal is not aware of any breaches of conditions attached to previous visas. The applicant is not aware of any applications or rejections of applications of visas to other countries. The applicant has lawfully been a resident of Australia since 2009 as the holder of various visas.

1. In more recent years the applicant has enrolled and not completed a series of short term, inexpensive course within the VET sector. The applicant has been onshore for some time without successfully completing a qualification.

2. The applicant provided an email chain to the Tribunal concerning his application for enrolment in a Diploma of Leadership and Management course in Tasmania. After many years residence in Melbourne the applicant wished to enrol in a VET level course in Hobart. He advised his proposed education provider he wished to apply for a yearlong Diploma so he could apply for a regional 489 visa after completion of his studies. This email statement of 9 July 2018 was not consistent with his later written statement to the Tribunal wherein he outlined a different set of reasons for seeking to study in Tasmania.

3. The Tribunal is inclined to the view the applicant seeks a student visa primarily for the reason of maintaining ongoing residence in Australia.

4. The Tribunal considers cl. 15 and 16 of MD69 if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant any other relevant matters

5. As the applicant is over 18 years of age, the intention of their parent, legal guardian or spouse was not relevant to the Tribunal’s assessment.

6. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia and find that there are no other relevant matters for consideration.

7. The Tribunal has considered all of the information provided by the applicant in support of their application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding their circumstances in their home country, potential circumstances in Australia, immigration history and the value of their proposed course to their future are sufficient to demonstrate that they are a genuine temporary entrant.

8. 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

9. 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.

10. 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

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

    Mark Bishop
    Member