Shahzad (Migration)

[2018] AATA 3183

Shahzad (Migration) [2018] AATA 3183 (8 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Arshad Shahzad

CASE NUMBER:  1610459

DIBP REFERENCE(S):  BCC2015/2620596

MEMBER:P. Wood

DATE:8 July 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 8 July 2018 at 5:05pm

CATCHWORDS
Migration – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – Genuine temporary entrant – Proposed future plan – Economic disparity of home country – Personal connections in home country – Further study of expensive course – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 573.223

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 9 September 2015. The delegate decided to refuse to grant the visa on 23 June 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.573.223 of Schedule 2 to the Regulations because the delegate determined the applicant was not a genuine temporary entrant.

4. The applicant appeared in person before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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 is a 26-year-old male from Pakistan who first arrived in Australia as a 20-year-old in 2012 having been granted an initial three year subclass 573 student visa primarily to study at the tertiary/degree level.

11. After arriving in Australia, the applicant completed a Certificate IV in Spoken and Written English at the Cambridge International College in 2012 and then went on to complete further vocational studies, completing a Diploma in Management in 2014. In 2017, the applicant completed a Certificate III in Commercial Cookery.

12. The Tribunal has had regard to a document the applicant provided the Department entitled ‘statement of purpose & genuine temporary entrant’ at folios 71-73 of the Department file.

13. The applicant was married on 4 March 2017 and told the Tribunal that his wife provides him with emotional support. The applicant told the Tribunal that his wife resides with his family in Pakistan and is financially supported by his father.

14. The applicant has a cousin who also lives in Australia but the remainder of his family are in Pakistan.

15. The applicant told the Tribunal that after arriving in Australia he was impacted by the death of two aunts back in Pakistan. The applicant provided the Tribunal with medical and death certificates. He also submitted to the Tribunal that Australian culture was a shock to him and claims that he had difficulty adjusting because of homesickness.

16. The applicant told the Tribunal that he returned to Pakistan for approximately 45 days at the beginning of 2017 when his mother had surgery concerning a pancreatic stone. The tribunal observes that this period also coincides with the applicant’s wedding.

17. Since being in Australia the applicant has enrolled in the Bachelor of Business degree several times. On each occasion, his enrolment has been cancelled.

18. The applicant is presently enrolled in further vocational studies, namely a Certificate IV in Commercial Cookery, a Diploma of Hospitality and Advanced Diploma of Hospitality Management. This package of courses is due to be completed by 21 July 2019.

19. The applicant claims that his future plan is to establish and operate his own restaurant business in Pakistan. The applicant told the Tribunal that he doesn’t consider that Pakistan has high-quality restaurants and that his father is willing to invest in his proposed restaurant business. When questioned by the Tribunal, the applicant was unable to specify type of cuisine he was intending to offer and could only say that he would offer a variety of things. When the Tribunal questioned the applicant if his wife would be able to confirm his future plan he replied that he hadn’t discussed it with her. Overall, the Tribunal considered the applicant’s proposed future plan seemed vague and lacking any previous meaningful consideration.

20. The applicant gave evidence that between 2015 and 2017 he worked at the retail premises of the Fawkner IGA supermarket. The applicant provided to documents confirming this employment in Australia. The applicant told the Tribunal that he is presently looking for a professional hospitality job in Australia.

21. The Tribunal accepts that the study proposed by the applicant may improve his employment and remuneration prospects in the future. The Tribunal also observes that the study proposed is consistent with his current level of education.

22. It is common knowledge that there is an economic disparity between Australia and Pakistan and the Tribunal considers that the applicant’s ability to earn Australian dollars working in Australia is a significant incentive for him to seek to continue to live here for as long as he can.

23. The Tribunal finds that over an extended stay the applicant has been able to manage personal relations overseas by living in Australia, by keeping in touch from Australia, and through visiting.  In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas to be a distinct incentive for the applicant to cease residence in Australia.

24. The Tribunal put the applicant’s records from the Provider Registration International Student Management System (PRISMs) and movement records to the applicant using the procedure in section 359AA of the Act. The Tribunal explained to the Tribunal it was concerned that the applicant had enrolled in commercial cookery courses on multiple occasions and had previously also enrolled in both accounting and management degrees at the bachelor level. The Tribunal discussed applicant’s responses with him.

25. There is nothing before the Tribunal to indicate that the applicant has had visa issues in any other country. There is also nothing before the Tribunal to indicate that the applicant has any military service commitments or issues concerning political or civil unrest that would impact his ability to return to Pakistan.

26. It is the applicant’s claim that he has always intended to stay in Australia temporarily and he continues to have that intention. If that is and was so, the Tribunal finds the applicant would have departed Australia to set in motion his claimed plan to open a restaurant business in 2017 when he had then completed recognised qualifications in both commercial cookery and management. Instead, the applicant has continued to propose an extended and expensive further study plan. The Tribunal considers that the applicant’s own conduct in proposing yet further study suggests that he will not succumb to the incentives he has to return to Pakistan.

27. 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.573.223(1)(a).

28. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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.

29. 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

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

    P. Wood
    Senior Member