Shah (Migration)

[2018] AATA 1903

Shah (Migration) [2018] AATA 1903 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Syed Noor Alam Shah

CASE NUMBER:  1621348

DIBP REFERENCE(S):  BCC2016/2198698

MEMBER:P. Wood

DATE:7 May 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 7 May 2018 at 7:40pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – Study history – Future plans – Relevant qualifications – Economic incentive to stay – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 28 June 2016. The delegate decided to refuse to grant the visa on 28 November 2016. 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 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.

4. The applicant appeared before the Tribunal in person to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The applicant’s registered migration agent was given an opportunity to address the Tribunal following the applicant’s evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)     …

8. 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.

9. 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.

10. The applicant told the Tribunal that he first arrived in Australia in May 2013. The applicant first enrolled in a Bachelor of Business (Accounting) degree and later a VET level Diploma of Management. The Tribunal observes that the applicant did not complete either course. The Tribunal has had regard to the applicant's written assertions regarding relationship distraction and hypertension impacting his ability to study. When the Tribunal questioned the applicant in person during the hearing, the applicant did not make reference to relationship distraction or hypertension but rather said that the teaching in the Bachelor of Business (Accounting) degree was different to what he had experienced in Pakistan. The Tribunal has considered the medical evidence from Dr Bhalerao as provided.

11. The applicant gave evidence that he began working part-time in a restaurant in Australia and around that time commenced the Certificate IV in Commercial Cookery, completing that course in August 2016. After this the applicant completed a Diploma of Hospitality also specialising in commercial cookery. The Tribunal has had regard to the completed certificates for both these courses as provided by the applicant.

12. The Tribunal has carefully considered the written submission dated 20 November 2017 prepared by the applicant's representative. This written submission confirms that the applicant has also completed an Advanced Diploma in Hospitality Management and commenced a Bachelor of Tourism and Hospitality Management degree program.

13. The Tribunal has had regard to an academic transcript dated 3 April 2018 provided after the hearing evidencing the applicant's credit transfer and subject results in the Bachelor of Tourism and Hospitality Management degree to date.

14. The applicant told the Tribunal that he does not have family in Australia and that all his family continue to reside in Pakistan. The applicant's written submission states that the applicant is engaged to be married and an heir to property assets in Pakistan. In his oral evidence the applicant said that he has only returned home to visit once, in March 2015.

15. The Tribunal questioned the applicant concerning his plan for the future. The applicant said that he has a family business which is a restaurant in Pakistan operated principally by his brother-in-law. He said that his brother-in-law has offered him a position as a ‘new branch manager’. The Tribunal has had regard to an undated supporting letter confirming this as provided. The Tribunal acknowledges the applicant’s claim that he is already maintaining the Facebook promotional page for the business from Australia.

16. The applicant said that he hopes to return to Pakistan in November 2018 after he has completed his bachelor degree. The Tribunal asked the applicant why he could not already return to Pakistan to pursue his stated plan given the numerous relevant qualifications which he already has. The applicant told the Tribunal that he considers that he needs a bachelor degree in order to work in his family restaurant business. The Tribunal does not accept this. The Tribunal considers that the applicant is already well qualified to perform the duties that he is supposedly contemplating.

17. The Tribunal considers that if the applicant's stated plan, namely to pursue employment in his family restaurant business, is true, then he could have returned to Pakistan to action that plan some time ago.

18. The applicant's written submission addresses the availability and standing of tourism and hospitality courses in Pakistan. In his oral evidence the applicant explained to the Tribunal that he will experience family and cultural related shame if he returns to Pakistan without a bachelor level degree. The Tribunal is not moved by this. The Tribunal considers that the applicant has had every opportunity to complete a bachelor degree in Australia over the last 5 years and is struck by the coincidental timing of the applicant's most recent enrolment occurring in the weeks immediately before the Tribunal hearing. The written submission provided by the applicant’s representative acknowledges repeated and extended periods during his time in Australia where the applicant was not studying despite being resident on a student visa.

19. The applicant gave evidence that he is presently working as a part-time taxi driver. It is common knowledge that there is an economic disparity between Australia and Pakistan and the Tribunal considers that the applicant's employment as a taxi driver in Australia provides a real economic incentive for him to continue residence in Australia for as long as he can.

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 the applicant 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 decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    P. Wood
    Senior Member