RIAZ (Migration)

[2018] AATA 5566

RIAZ (Migration) [2018] AATA 5566 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ALI RIAZ

CASE NUMBER:  1711948

DIBP REFERENCE(S):  BCC2017/1028105

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 October 2018 at 12:27 pm (VIC time)

DATE OF WRITTEN RECORD:                23 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment and study history – a range of unrelated inexpensive courses – study gaps – stayed in Australia for more than nine years – future plans – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 May 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 October 2018 Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. MEMBER:  Mr Riaz, to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations. 

4. You applied for a student visa on 15 March 2017. You have previously held four student visa this application was for your fifth student visa. Your application was refused on 16 May 2017 because having considered your circumstances the delegate was not satisfied you were a genuine temporary entrant and did not satisfy clause 500.212.

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. To satisfy clause 500.212 an applicant must be both a genuine student and a genuine temporary entrant. To be a genuine student you must be engaged in and studying and applying yourself to a meaningful program of study, progressing academically down an identifiable path.  To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily.

7. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant it is necessary for decision makers to consider the issues in what is known as Ministerial Direction No. 69  Those issues were detailed in your primary decision and they include:

   ·your circumstances,

   ·the value of your courses to your future,

   ·your immigration history,

   ·your incentive to remain in Australia or return home,

   ·whether you are using the student visa program to maintain residence in Australia, and

   ·any other relevant matter.

8. It is not intended as a checklist but as a guide for decision makers in considering the circumstances of an applicant in deciding whether or not, on the whole, the applicant satisfies the genuine temporary entrant criteria.

9. The role of the Tribunal is to take a fresh look at your application, consider the circumstances and the issues in Direction No. 69 and be satisfied you are a genuine student who intends to stay here temporarily and are eligible for the grant of a visa.

10. The primary decision and its detailed references to the issues in Direction No. 69 clearly put you on notice of the issues in your case.

11. Given it was the reason your application was refused, with the hearing invitation we advised that we would assess whether you met the genuine temporary entrant requirements. 

12. We said 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. You did not provide a statement as requested.  What you provided was a list of events that you said was not the statement.  You claim you sent a statement to your migration agent but it got lost.

14. I note from the primary decision that with your visa application which as I say, is an application for your fifth student visa.  It says: “All student visa applicants are required to provide information in support of their application to demonstrate they meet the genuine temporary entrant criteria.  Please give details to support your ability to meet the criteria and ensure supporting documents are attached”. In response you said:  “Respected, sir, I will attach the documents with my applications.  Thanks”.

15. However, as noted in the decision, despite having said that you would attach relevant documents, you did not attach any documents or provide any evidence that you satisfy the genuine temporary entrant requirements and so the Tribunal considers this is a pattern of behaviour that is unsatisfactory and staggering for somebody who is applying for a student visa following a refusal because the delegate was not satisfied you met the genuine temporary entrant requirements and we say please send us a statement saying how you satisfy those requirements and you just do not bother.

16. However, at today’s hearing you answered a number of questions that went to the issues in Direction No. 69. 

17. You were asked to provide a range of information, including evidence of past studies and specifically requested to provide evidence in the form of attendance certificates, academic transcripts and certificates of completion.

18. At today’s hearing you have referred a number of times to the fact that you have academic transcripts, however with the exception of one for the Advanced Diploma of Business I do not believe that you have provided any other academic transcripts. 

19. You have provided evidence of some certificates that indicate you have completed a Certificate IV in Financial Services, a Diploma of Accounting, Advanced Diploma of Accounting, a Certificate III and IV in Commercial Cookery, and a Diploma of Hospitality Management however, there are no academic transcripts, and as I will get to shortly, there appear to be some very significant gaps in your studies. 

20. We asked you to provide an explanation of any gaps in studies and you did not respond.

21. So you came to Australia back in January 2010 aged 23 having finished high school and you came here you say to study to be accountant, studies that you say would take three years. 

22. You have now been here for almost nine years and have studied a range of unrelated generally inexpensive courses. 

23. There are a number of courses you may not have studied but have been enrolled in, they include: Certificate IV in Financial Services, Diploma of Accounting, Advanced Diploma of Accounting, Certificate IV in Business you studied briefly, Diploma of Business, Diploma of Management a couple of times.  An Advanced Diploma of Business, Advanced Diploma of Management you were enrolled in a couple of times, cancelled.  Certificate III in Information Technology and Digital Media, a Certificate IV in Information Technology (Networking), Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, a Diploma of Hospitality Management, Advanced Diploma of Hospitality Management and you now say you want to do a Bachelor of Tourism and Hospitality and Management.

24. The Tribunal considers your enrolment and study history to have been in a range of unrelated courses without any satisfactory explanation as to why you have jumped from one to the other.  You say your father initially was keen for you to study business but then you convinced him that you should study Information Technology and then you changed to Cooking.

25. You say you have worked as a cleaner for the last six years, so despite being qualified as a cook you did not do any work in that field. 

26. The Tribunal considers your study pattern is not that of a genuine student but believes you have chosen courses not in pursuit of an academic achievement but rather in an attempt to remain resident in Australia.

27. When asked why you do not do your studies at home you provide no satisfactory answer other than saying Australian qualifications are better regarded back home.  If it is your intention is to return home and open your own business the Tribunal does not believe that it is relevant how the courses you have studied are regarded.

28. Now, referring to your study gaps you provided what you called a ‘list of events’ in which you talk about the fact you completed some units at the end of 2012. You say your college, South Pacific Institute was going to close and so you enrolled in the Technical Institute of Australia on 10 June 2013 to do an Advanced Diploma of Business.

29. You were asked on a number of occasions what you had done between the end of 2012 and June 2013 and you provided no satisfactory answer.  There is no evidence of you having done any studies at that time.

30. Also, as referred to in the primary decision, there is no evidence of you having been enrolled from 24 November 2014 to 5 June 2015, and when I asked you about this you say “Yes, well, that was because my father died.”  Well, the situation is the evidence that you have provided is that your father died on 9 June 2014, so I do not believe that provides a satisfactory explanation for why you are not enrolled in a course that commenced on 29 November 2014, some five months later.

31. Student visas are granted with the expectation that student visa holders will remain enrolled and studying.  As already stated, I do not believe your study history is that of a genuine student and I do not believe that your explanation provides a satisfactory explanation for your behaviour, which the Tribunal does not believe is that of a genuine student.

32. You are requesting a visa to remain in Australia  to study a course that is scheduled to run until November 2019, which would bring your total time in Australia on temporary visas to a couple of months short of 10 years.  While I accept that some education and career pathways require extensive study I am not satisfied you have established that your future goals fall into this category at all.

33. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident but rather believes you are seeking to use the student visa program to maintain residence in Australia.

34. When asked about your plans, you initially say it is your plan to go home and open a restaurant and then you say and a hotel.  And when I asked about the restaurant it very quickly becomes apparent that you have made no real plans about that restaurant at all.  When I ask you how many people the restaurant will seat you initially say eight to 10 tables.  And when I ask you how many in terms of numbers you say 150.  When I expressed surprise that 150 people might sit at eight to 10 tables you then start telling stories about the fact that, well, you know, there will be 50 on each storey and there will be a three storey restaurant.  And when I ask you about the number of workers that you will have it is apparent that you have no idea. You have not done research. You talk about 15 to 20 waitresses, five to six shifts, and you and your wife.

35. The Tribunal finds you do not have a business plan guiding your studies. The situation is that you say that you wish to open a restaurant and you then say a hotel.  When I asked you about, well, you know, it might not happen for six months or so after I get home, so I have not thought about that all that much.

36. But with the studies that you have already done the Tribunal does not believe that your proposed study will provide you with any greater or relevant skills required in opening and running a restaurant than you have already gained in your previous study and experience.

37. So I acknowledge that you have family back home and I find it quite staggering that you have a wife and three children back home, which one would think would have provided a very significant incentive to return home but apparently not.  Because having been here for eight and a half years you now seek to remain for another year and a half.  Your words and your actions seem to be different. 

38. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia where you say you have a job working here for the last six or seven years and I do not believe that you have provided any evidence of any incentive to return, which outweighs the issues we have discussed or your immigration history.  As you said, you live here with your brother.

39. So having considered your circumstances as a whole, including the issues in Direction No. 69, I am not satisfied that you are a genuine student who intends to stay in Australia temporarily.  I therefore find you do not satisfy clause 500.212 and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

40. The Tribunal affirms the decision under review.

    Tim Connellan
    Member