Sehar (Migration)

[2018] AATA 2335

Sehar (Migration) [2018] AATA 2335 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Samina Sehar

CASE NUMBER:  1619745

Home Affairs REFERENCE(S):               BCC2016/3207972

MEMBER:Stephen Witts

DATE:18 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 May 2018 at 9:57am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant genuinely intends to stay in Australia temporarily – Multiple, unrelated courses undertaken – Lack of academic progress – Frequent gaps in studies – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
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 Immigration and Border Protection on 9 November 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared before the Tribunal on 14 May 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends to stay in Australia temporarily.

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

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

9. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

10. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. At the hearing the Tribunal had a discussion with the applicant regarding issues and considerations laid out in Ministerial Direction 69.

    Background

12. According to the delegate’s decision record the applicant first arrived here from Pakistan on a student visa (TU572) which was a valid until 23 May 2014. The applicant has been on subsequent student visas or associated bridging visas until the applicant’s application for a further student visa was refused by the delegate on 9 November 2016.

13. The applicant is currently studying a Diploma of Hospitality Management which began on 31 May 2017 and is due for completion on 6 December 2018.

14. According to the delegates decision record and evidence provided by the applicant, the applicant has been enrolled in the following courses: a Certificate III in ESL which was initially cancelled and then completed in 2012, a Certificate IV in Financial Services (Bookkeeping) which was cancelled in 2013, a Diploma of Business which was finished in 2013, a Diploma of Accounting that was cancelled in 2014, a Diploma of Children’s Services (Early Childhood Care) which was finished in 2015, an Advanced Diploma of Business which was finished in 2016, and a Certificate III in Commercial Cookery that the applicant enrolled in in 2016 but was subsequently cancelled.

    Circumstances in home country

15. The applicant testified that after finishing high school she worked in a bank for five years before deciding to come to Australia to study because, she stated, it’s a good country.

16. The applicant testified that she has no parents back in her home country but she does have a brother who lives in Dubai, and four stepbrothers and one stepsister. She testified that she remains in regular contact by phone, Skype, or Viber. She indicated that she owns a house back in her home country which is currently rented out. The Tribunal makes to findings in regard to this matter.

17. There is no significant relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in the country.

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

18. The applicant testified that she has no family members in Australia except for her husband who she is currently separating from. The Tribunal makes no findings in regard to this matter.

19. The applicant stated that she had been back three times to her home country since her arrival here in 2011. She had one visit back home in 2013 and two in 2015 for short periods of time. The Tribunal makes no findings in regard to this matter.

20. The applicant stated that she rents in Craigieburn with a friend. She stated that she works in a GSM mobile shop for 20 hours a week and earns about her$ 450 AUD per week. She indicated that her husband had been paying for his studies but since her recent separation she was paying for herself.

21. Adopting the procedure of the Act 359AA, the Tribunal read out the following statement to the applicant:

22. I’d like to talk to you about your study history and to do that I’m going to put to you formally under the law, a piece of information that I have. The information that I will put to you is something I consider would be the reason, or part of the reason, for affirming the decision under review.

23. I have before me, Provider Registration and International Student Management System records, otherwise referred to as PRISMS. This PRISMS record from a database that is kept by the education providers and details all of your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

24. This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists many courses that weren’t started, or that were started and shortly thereafter cancelled.

25. The consequence of this information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically that you are not a genuine student. This may mean that you are refused to visa which you have applied for.

26. You may comment on or otherwise respond to this information. You may wish to ask for additional time to comment on or respond to the information.

27. The applicant, after reviewing the material with her representative for a few minutes, decided to continue. The Tribunal reviewed the applicant’s study history with her. This included the courses that were enrolled in and completed, and the ones that were cancelled or not finished.

28. When asked to explain her study plan the applicant explained that she had originally intended to focus her study on acquiring business related skills but had then decided to change her focus to studying in the child care area. She stated that at that point she wanted to return home to Pakistan and open a childcare centre and that childcare was an important role for her in the future. She then stated that she decided that childcare has no future in Pakistan and that it was not something that she could consider managing as a woman back at home. She then stated that she wanted to go home to open a restaurant business and that was the reason she wanted to change her focus to study in the hospitality area. The Tribunal was concerned by this evidence as no coherent plan of studies was put to the Tribunal. The applicant did not outline to the Tribunal a plan that gave the Tribunal confidence that the applicant was pursuing her studies with the intention of acquiring specific skills to return back to her home country to practice. The Tribunal finds that this demonstrates that the applicant is not a genuine temporary entrant and is using the student visa system to remain in Australia not to pursue a genuine study program and return home with a specific set of skills.

29. When asked by the Tribunal to explain how the many disparate courses during her time here in Australia, which included cancelled business and accounting courses, a childcare course, cancelled commercial cookery certificate study and now diploma level hospitality management study fitted into a study plan the applicant testified that she had changed her mind a few times whilst studying here but that she now wanted to return home to open a restaurant business. The Tribunal was concerned by this evidence as these changes in study were not adequately explained or justified.

30. When asked by the Tribunal to explain the study gaps in her record of more than six months she testified that she had had trouble with some course providers being unable to deliver her course and that is why she dropped out of her commercial cookery studies but that she was now proceeding to study successfully for a Diploma of Hospitality Management. The Tribunal was concerned by the study gaps in that it indicated that the applicant was not seriously pursuing her study plan.

31. When asked by the Tribunal to outline what skills she was acquiring in her current course in her Diploma of Hospitality Management that would actually assist her in opening up a restaurant back in her home country she stated that she was learning hospitality management related skills like first aid, finance and hospitality, and how to manage a budget. The Tribunal is concerned that this was not an adequate response to explain another year of study having already been here for seven years.

32. In the applicant’s GTE statement of 4 May 2018 (AAT folio 54) the applicant’s representative, on behalf of the applicant, stated that most of the courses that the applicant had completed have relevance to her future career path and that her study gave her a clear vision of her future business venture of opening a restaurant as the applicant had strengths in cookery. The Tribunal finds that this evidence does not clearly establish any link in the business related and childcare related courses to the applicant’s stated future plans of opening a restaurant back in her home country based on her current study in hospitality management.

33. The applicant’s representative testified that overseas students do make a number of changes to the courses and noted that the applicant’s original enrolment in a childcare course was not helpful.

34. Overall, the Tribunal finds that the proposal to study further in the VET sector is of limited value to the applicant’s future and is a means by which the applicant can continue to reside here in Australia on student visas.

35. 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

36. 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.

37. 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

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

    Stephen Witts
    Member