Shahid (Migration)

[2018] AATA 3398

Shahid (Migration) [2018] AATA 3398 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Fatema Shahid
Mr MD Nazmus Shahadat
Miss Afifa Zahin Nazifa
Miss Fairouz Zahin Nuhat

CASE NUMBER:  1701311

HOME AFFAIRS REFERENCE(S):           BCC2016/3709478

MEMBER:Mark Bishop

DATE:19 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 July 2018 at 2:58pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Obtained higher qualifications – Senior positions in home country – Extensive work experience in related field – Minimal financial and career value of current course – Preparation for Australian Medical Council exam – Sufficient expertise to achieve project – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311

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 10 January 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 November 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicants appeared before the Tribunal on 19 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. The applicant provided a copy of the decision record to the Tribunal.

7. For the following reasons, the Tribunal has concluded that the decision 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. The decision record provided the following detail:

    • The applicant was granted initial student TU-573 visa offshore on 22/10/2014;
    • The applicant arrived on 13/11/2014 has since held student or associated bridging visas;
    • At time of current application for student TU-500 visa on 7/11/2016 the applicant was enrolled in an ELICOS course and a Master of Public Health;
    • Since arrival in 2014 the applicant has only completed an ELICOS course;
    • The applicant’s proposed study, a Bachelor of Nursing, is similar to previous studies, Bachelor of Medicine and Surgery (completed offshore). The delegate questioned the value of a Nursing degree to the applicant’s future;
    • The applicant holds superior qualification from her home country and has previously obtained employment in medical field. The applicant provided employment reference letter for work as doctor in department of Anesthesiology. No substantial reason for further studies provided.
    • As the delegate is not satisfied that the primary applicant meets cl. 500.212, the secondary applicants cannot meet cl. 500.311.

13. The applicant provided a GTE statement to the Department that outlined the following:

    ·The applicant wishes to help poor people in her country and believes nursing is the best way to do so;

    ·The applicant initially wanted to study Masters in Public Health to learn how to implement programs to prevent disease, however, did not enjoy administrative nature of the course;

    ·The applicant now wishes to sacrifice her own professional journey to assist Bangladesh’s poorest people. Claims Mother Teresa is an inspiration to her;

    ·The applicant’s future goal is to build a nursing institute in Bangladesh with financial assistance from friends and family;

    ·The applicant intends to take up employment offer at General Medical Hospital & Diagnostic Centre in Bangladesh upon completion of studies.

    ·The applicant has been on study leave from position with Ministry of Health and Family Welfare (Bangladesh) and has been receiving income from rental properties in Bangladesh;

    ·The applicant wants to be reunited with family and parents upon completion of studies.

14. The applicant provided  a further GTE statement to the Tribunal that outlined the following:

    ·Australian education is recognised worldwide for its quality;

    ·The Master of Public Health at Deakin University (proposed study upon arrival in Australia) was difficult, applicant felt homesick and stressed;

    ·The applicant did not receive good results from first exams, withdrew from next unit despite having paid in full;

    ·At this time the applicant ‘recalled’ her dream of opening a nursing institute in Bangladesh;

    ·The applicant consulted a student counsellor and was advised to pay for extra essay classes instead of changing courses, however, her husband and father advised her to follow her dream and change paths to study nursing;

    ·The applicant claims that medical students in Bangladesh get limited practical experience during study and wants to open nursing college to provide quality medical education;

    ·The applicant will work as the Dean of the college and hopes to obtain funding and political support to expand the nursing institute, based on her reputation;

    ·The applicant has completed over half of a Bachelor of Nursing, due to finish in February 2020;

    ·Study in Australia has allowed the applicant to ‘brush up’ her skills and work with diverse people;

    ·Chose to study in Australia because of worldwide recognition of qualifications, quality of lifestyle (in particular, safety for women) and affordability;

    ·Claims to have ties to Bangladesh and no bad intention in relation to her stay in Australia, vows to abide by Australian laws. 

15. In essence the applicant is a highly successful professional woman. She seeks to complete a Bachelor of Nursing, and achieve a degree in a medical field when she is a qualified doctor, surgeon, medical officer, health administrator and senior public sector officer with years of professional experience.

16. She provided a written statement that she completed a Bachelor of Medicine and a Bachelor of Surgery at Dhaka National Medical College in August 2008. She outlined her career progression since that time until 2016 as a medical officer, assistant surgeon, medical officer and officer of special duty at various hospitals and medical complexes in Bangladesh. Her average salary in these years was $A6, 000 per annum.

17. She advised the Tribunal she regularly worked almost 100 hours per week in a combination of the public sector, private sector and outreach activities. She advised the Tribunal she earned a very high salary in her home country, high by Australian standards. The applicant is a graduate of a highly regarded University in her home country. She has worked in responsible positions all of her adult life in the medical field.

18. At the opening of the hearing the Tribunal inquired why a senior experienced medical practitioner of many years standing would seek to study Nursing in Australia. The applicant advised she had experienced difficulties in her Master’s degree and after consultation with her father and husband sought an alternate course of study. The Tribunal examine the transcript from her only semester at Deakin University. She passed one subject and failed one subject by one mark. The Tribunal expressed the view the applicant had already had sufficient qualifications, expertise, experience and professional standing to work as a nurse or manage a nursing institute. The applicant did not address this point in response and referred to previous difficulties with studying a Master’s degree.

19. The Tribunal raised the issue of the Australian Medical Council. The applicant had not addressed this option in any of her submissions to the Department or the Tribunal.

20. In evidence the applicant advised the Tribunal she had a cousin living in Shepparton and working as a doctor at the local hospital. He cousin advised her to sit for the Australian Medical Council (AMC) examination. The applicant considered that advice and in November or December 2017 applied to the AMC for registration as a medical practitioner in Australia. The applicant advised she had uploaded all relevant information and provided certificates and documentation as to her qualifications from Bangladesh. The applicant advised the AMC wee currently going through the process of verifying all relevant material.

21. The applicant advised the Tribunal her cousin had told her the AMC exam was “easy” and she was currently doing the necessary work for the exam. The Tribunal asked the applicant why she sought registration as a medical practitioner in Australia when she was already a senior physician in her home country. The applicant advised she wanted to work in the clinical field of a hospital anywhere in Australia. The applicant had not settled on a particular location. She further advised the achievement of admission as a medical practitioner in Australia would be highly regarded in Bangladesh. 

22. She advised she had completed English language courses in her time in Australia. She advised her annual salary as a cleaner and supervisor in Australia from July 2015 until the present time was $29,000 per annum. She advised she had not returned to Bangladesh since arrival in Australia. She advised her annual living expenses in Australia were $71,000 inclusive of school fees, University fees and loan repayments. She advised she resided in Australia with her husband and two children. She advised she last saw her parents three months age and other members of her family three to four years ago.

23. The Tribunal turns to consider Ministerial Direction number 69.

24. The Tribunal has regard to Cl.9 and 10 of Ministerial Direction number 69 the applicant’s circumstances in her home country. As outlined the applicant is a senior medical practitioner in her home country with many years’ experience working in her field. She has held senior positions in hospitals, medical complexes and the public sector in her home country. The applicant advised she normally worked 40 hours per week in her hospital and supplemented this work with a further 40 hours work per week in the private sector. She advised her income from this private sector work was significant and considerably in excess of her government wage. She advised assets owned in her home country provided a significant income stream to her whilst resident in Australia.

25. She advised she had parents, parents-in-law and siblings-in-law resident in her home country. She advised she did not have any military commitments and was not aware of any political or civil unrest in her home country. She advised she consulted with her husband and father concerning critical decisions about study and career.  Her written submissions confirmed this point. The applicant advised she was studying Nursing in Australia because it would give her a prestigious qualification from a highly regarded country.

26. The applicant in her written submissions and evidence said she would like to open Nursing Institute in her home country. This was the principal reason for now studying Nursing.  The applicant provided an architectural drawing of a typical floor plan of a proposed building to house a Nursing College in her home country. On many occasions during the hearing the Tribunal referred to the applicant’s education, experience, expertise, wealth, family support, lack of regulatory constraints and asked the applicant why she could not now open Nursing Institute. The applicant advised the Tribunal she wanted to study Nursing. The applicant did not provide a business case to the Tribunal for the Nursing Institute.

27. The applicant is a high income medical practitioner with many years of experience in her chosen field. She did not express any concerns as to the financial security of her assets in her home country. She has left her home country, accompanied by her immediate family upon the pretext of studying at Master’s level, experienced some difficulties, changed to Nursing and as her study has progressed has taken all necessary steps to achieve registration as a medical practitioner in Australia. The applicant in evidence indicated she wished to remain and work “anywhere” in Australia. The Tribunal is of the view the applicant’s personal ties to her home country whilst important do not serve as a significant incentive to return to her home country.

28. The Tribunal has regard to Cl.11 the applicant’s potential circumstances in Australia.

29. The applicant advised she resided in Australia with her husband and two children. She advised her husband had resigned his “good” government job to accompany her and support her in Australia. She advised both partners worked and earned salaries of around $600-$700 per week. The applicant advised of family in Victoria, consulted with her cousin and accepted career advice to gain qualifications as a medical practitioner in Australia. The applicant advised she was preparing to sit the necessary exams and the AMC were in the process of verifying her certificates and other qualifications. The applicant advised if she gained registration from the AMC this would enable her to work in Australia. She further advised registration from the AMC would be highly regarded by family, friends and peers in her home country. The Tribunal is of the view the applicant’s current ties to Australia present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa program to circumvent the intentions of the migration program and the student visa is being used to maintain ongoing residence.

30. The Tribunal has regard to Cl.12 the value of the course to the applicant’s future.

31. The applicant tis currently undertaking a course allied to previous study taken by the applicant. The course is at a considerably lower level than previous Bachelor degrees in Medicine and Surgery. The applicant has many years’ experience working in the clinical field and gave evidence she works for over 80 hours per week as a medical practitioner in both the private and public sector in her home country. The applicant provided transcript she had studied subjects called Human Biological Science 1, Human Biological Science 2 and other inter-professional learning units. The Tribunal is of the view the applicant would have studied these or similar subjects as part of her previous studies in her home country. The applicant is generally studying units in a course for which she is already qualified by way of education, formal qualifications, clinical experience and professional expertise.

32. The applicant is not studying Nursing so that she might obtain employment in her home country or improve her employment prospects in her home country. I f the applicant wished to practice as a nurse in her home country she would be welcome. She is already qualified to act in that profession. The study of Nursing has minimal financial value to the applicant in terms of employment as a nurse in her home country. The study of Nursing has minimal career value to the applicant. The applicant advises she wishes to open and operate a Nursing Institute in her home country. The Tribunal is of the view the applicant has the means already to carry out such a project. The Tribunal is of the view the applicant has the expertise already to open such a project. The Tribunal is of the view the applicant has the qualifications already to carry out such a project. The tribunal is unable to see any value in the course to the applicant’s future.

33. The Tribunal has regard to Cl. 13 and 14 the applicant’s immigration history.

34. The applicant advised she held a passport from Bangladesh, arrived in Australia in November 2014, had not returned to her home country since arrival in Australia and had not applied for a visa to a country other than Australia. There was no evidence before the Tribunal concerning Cl.14(b).

35. At the conclusion of the hearing the Tribunal invited the MA for the applicant to make submissions. The MA advised the Tribunal the applicant came to Australia to study public health, failed and changed to Nursing. She wished to gain a Certificate that would help her to work in her home country. The Tribunal notes this is not quite correct. The applicant failed one subject out of three by one mark only. This result is not failure. In the context of the academic achievements, work history and professional accomplishments of the applicant it is an aberration. The applicant used this failure as an excuse to switch her degree enrolment. The Tribunal has trouble accepting that marginal failure of one subject in a post-graduate degree that is the reason for coming to Australia at considerable expense is the real reason for the switch to a degree in a field in which the applicant is already well qualified.

1. The Tribunal has given consideration to the applicant’s evidence, the applicant’s various statements, supporting documentation and previous submissions to the Department.

2. The Tribunal does not accept the core submission of the applicant that she wished to study Nursing so that she may return to her home country and open Nursing Institute. The Tribunal has trouble accepting the proposition the applicant is motivated by “Mother Theresa”.  The Tribunal has trouble accepting the applicant is motivated by a desire to help Bangladesh’s poorest people by opening Nursing Institute. The Tribunal observes the applicant could have embraced that project any time in the last ten years. The Tribunal doesn’t understand how the applicant can claim to be “brushing” up her skills by studying Nursing.

3. The Tribunal is of the view the applicant is enrolled in a Bachelor of Nursing as a pretext to gain continuing residence in Australia whilst she prepares for, sits and meets all necessary requirements of the Australian Medical Council so that she may gain registration as a medical practitioner in Australia and practice medicine in this country in any available location.

4. 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

5. 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.

6. 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

7. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

   Mark Bishop
   Member