Ahmed Zoheb (Migration)

Ahmed Zoheb (Migration) [2022] AATA 4916 (20 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ahmed Zoheb
REPRESENTATIVE:  Mr Srinivasa Reddy Gottam (MARN: 1462748)
CASE NUMBER:  2006614
HOME AFFAIRS REFERENCE(S):          BCC2019/6801087
MEMBER:Warren Stooke AM
DATE:20 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 May 2022 at 6:47pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – multiple previous visas as secondary and primary holder – long residence, previous overstay, employment and stated intention to remain permanently – family and property in home country – inadequate academic progress and non-commencement of most recent enrolment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a), Schedule 8, condition 8105
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 December 2019. 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.
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 (Cth) (the Regulations) because at the time of application, the applicant declared that he was holding a student visa and he also declared that he had overstayed on his previous student visa. The applicant’s departure background also suggested that the applicant’s potential circumstances in Australia outweigh any incentive he has to depart and the delegate held significant concerns that the applicant has utilised temporary visas and is again attempting to utilise a temporary visa to maintain ongoing residence.
The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments.
The applicant was assisted in relation to the review.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was because the Department were asking him that he had been living in Australia for a number of years and failed by extending .
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 is a genuine temporary entrant for entry and stay, as a student.
The applicant provided evidence that he arrived in Australia on 29 July 2008 on a dependent visa with his wife who undertook a Master of Information Technology and returned to India in 2012. The applicant stated that he is still married with three children and has returned to India a couple of times but had not returned for two and one-half years.
The applicant was granted a Bridging Visa A on 15 March 2019, which has condition 8105 and does not permit travel.
The applicant provided evidence that he had been granted the following visas whilst resident in Australia:
a.Student Dependent Visa from 07/2008 to 06/2010
b.Student Dependent Visa from 06/2011
c.Student Dependent Visa 12/2013
d.Student Visa from 01/2014 to 02/2015
e.Student Visa from 06/2017 to 12/2019
The applicant provided evidence that he has health insurance with OSHC Ahm that was valid from 16 March 2019 to 7 July 2023.
The applicant provided information that he had enrolled in the following courses of study:
a.    Oceania Polytechnic Institute of Education - Certificate III in Solid Plastering from 06/2019 to 08/2020;
b.    Western Institute of Technology - Diploma of Building and Construction (Management) from 06/2017 to 06/2018;
c.    Australia Institute of Entrepreneurship - Certificate IV Small Business Management from 08/2015 to 02/2016;
d.    RGIT - Diploma of Management from 09/2014 to 09/2014.
The applicant advised the Tribunal that he enrolled at the Oceania Polytechnic Institute of Education to undertake a Certificate IV in Building and Construction (Building) from 09/2020 to 09/2021 that he never started.
The applicant provided the Tribunal with a copy of a confirmation of enrolment to undertake a Certificate IV in Building and Construction (Building) from 15 February 2022 to 14 February 2023.
The applicant stated in the s359(2) response to a request for information from the Tribunal that his purpose for studying at the Oceania Polytechnic Institute of Education was as follows:
“Oceania Polytechnic Institute of Education is popular for providing courses in Building and construction sector. The core of Oceania Polytechnic’s success is to provide students with focused outcome relevant to industry and professions that prepares students with creativity and independence derived from work-integrated learning that is global in its conception and facilities. I was studying Solid Plastering course in this college, the learning environment for the abovementioned courses have provided me confidence that I will achieve REAL OUTCOMES from learning current industry business practices in an advanced economical country. Also, this college is primarily located next to the Melbourne CBD and has easy access to Public transport. I understand that this college is accredited with a national body and the education they provide is a quality education.
I am planning to study in Australia because the Vocational Education & Training is found on Australian Quality Framework which means my qualifications are recognized anywhere in the world.
Also, the English language requirement is also not at very high level as in some other advanced countries, I have to pass both Standardized test (SAT) and Test of English as a Foreign Language (TOFEL) to obtain the college admission whereas here in Australia it is only 5.5 in IELTS or passing PLACEMENT test with the institute. This is really helpful in a way because English is not my first language. In my home country, the Vocational education and training is not founded as an Australian system. Especially, the Vocational education and training qualifications are not nationally recognised in India. That's why I am undertaking my studies in Australia.”
The applicant stated that it was his objective to obtain a 485 Visa or Permanent Residency and that he had been studying to get any type of visa courses to get taken off the list.
The Tribunal asked the applicant if he understood that the visas, he seeks are Temporary Visas and he responded: “I want to have a good life” and “can’t get rewarded for our efforts”.
The applicant provided evidence that he hoped, once he finishes the course, to have a Temporary Visa and “best I can do is to bring my family here”.
The applicant provided evidence that it is not his intention to return home. He stated: “I have given 100 per cent to this country”.
The applicant stated in the s359(2) response to a request for information from the Tribunal that his aspirations were as follows:
“After completion of my studies in Australia, I want to pursue my career as - Construction Manager with popular builders like DLF builders, L & T enterprise or Godrej properties, etc. Later, obtaining a handful of managerial work experience years in relevant field, I will try to establish my own Building & Construction business to construct residential and commercial properties.
As a construction Manager I would earn 10 Lakh Indian rupees per annum. As a small business owner, I would be able to make 20 Lakh Indian rupees per annum.”
The applicant provided evidence that he was living in a share-house in Richmond and was paying $1,600 per month in rent.
The applicant provided evidence that he works for Melbourne Groceries Customer Service as a casual, where he has worked since July 2017 and has earnings of $18,000. He stated that he hires people to help in the business, which is a family business and he joined with the family, who are permanent residents.
The applicant claimed in the s359(2) response to a request for information from the Tribunal that he has the following assets in India:
a.House – stated value of $1,600,000 in India
b.Commercial Office Space – stated value of $160,000 in India
The applicant stated in the s359(2) response to a request for information from the Tribunal that he has the following family in India:
a.Ghaliya Zoheb - Child resident in India and last visited 10/2019
b.Hamzah Zoheb - Ahmed Child resident in India and last visited 10/2019
c.Sarah Zoheb - Child resident in India and last visited 10/2019
d.Syeda Maliha Afreen - Wife resident in India and last visited 10/2019
e.Khaja Azeemuddin - Parent resident in India and last visited 10/2019
f.Aisha Meraj - Parent resident in India and last visited 10/2019
g.Ahmed Moseb - Brother resident in Canada and last visited 10/2019
h.Summayya Noorain - Sister resident in India and last visited 10/2019
i.Jamal Maaz Ahmed - Brother resident in India and last visited 10/2019
j.Fakiha Rahmani - Sister resident in Dubi and last visited 10/2019
The applicant provided evidence that he has returned to his home country over the more than 13 years he has been resident in Australia on the following periods:
a.12/2011 - 40 days sister's marriage in India.
b.03/2013 - 60 days family visit
c.04/2015 - 60 days family visit
d.08/2017 - 90 days family visit
e.08/2018 - 60 days family visit
f.09/2019 - 35 days family visit
The applicant provided evidence that he would not have any difficulty in assimilating back into Indian society and he responded: “After the best years I have to start my life from scratch. I want my children to get a standard of life here”.
The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to India and he responded: “Not about the reason, it is about 15 years put into this country.”
The Tribunal asked the applicant what is his business plan upon return to India and he responded: “If I set up a business – can only set up what I have gained here”
The Tribunal asked the applicant if the applicant’s motivation is to remain in Australia permanently and he responded: “Yes, one hundred percent”.
The Tribunal asked the applicant if he wanted to make any other comment and he responded: “It will be very difficult for me to go back and educate my children”.
Genuine applicant for entry and stay as a student (cl 500.212)
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?
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, which is attached to this decision, 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.
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.
The Tribunal has considered the evidence provided by the applicant at hearing, together with written statements and submissions from the applicant and finds that the applicant does not intend genuinely to stay in Australia temporarily for the following reasons:
a.The applicant provided evidence that he entered Australia on 29 July 2008 on a dependent visa and has not returned to his home country for two and one-half years and overall has only returned to his home country in 2013 for 60 days; April 2015 for 60 days; August 2017 for 90 days; 2018 for 60 days and in September 2019. This indicates to the Tribunal that the applicant has stronger ties to Australia (based upon the applicant’s evidence at hearing) than that of his home country, despite evidence that he owns property in India and that his wife left Australia in 2012 and that he has children resident in India. Further, the applicant stated in evidence that he seeks to stay in Australia permanently and is seeking any visa to accommodate that objective. The Tribunal finds that this is not the expected behaviour of a genuine temporary entrant for entry and stay as a student;
b.The Tribunal considers that the applicant has made inadequate academic progress in his studies in the almost 14 years of residency with having irregularly participated in studies whilst holding a confirmation of enrolment since 2014 and has not participated in studies since discontinuing enrolment at the Oceania Polytechnic Institute of Education in a Certificate IV in Building and Construction (Building) course scheduled from 09/2020 to 09/2021, which he confirmed at hearing he never started;
c.The applicant has been resident in Australia since July 2008 and has had a significant period of almost 14 years on various visas to complete studies in the VET sector. As such, the Tribunal finds that the applicant is using the Student visa stream to maintain lifestyle and residency and to gain access to employment, where he has maintained work access without undertaking studies. The Tribunal finds that this is not in keeping with the Temporary Student Visa stream requirements and demonstrates that the applicant is not a genuine temporary entrant for entry and stay as a student;
d.The applicant’s response to the Tribunal at hearing, including whether he would not have any difficulty in assimilating back into Indian society and his response: “After the best years I have to start my life from scratch. I want my children to get a standard of life here” and whether there was any reason that would preclude the applicant from returning to India with a response: “Not about the reason, it is about 15 years put into this country” clearly demonstrated to the Tribunal that the applicant is not a genuine temporary entrant and seeks to remain in Australia permanently. In this regard, the applicant stated, when asked if it was his motivation to remain in Australia permanently, responded: “Yes, one hundred percent”.
The Tribunal has considered the applicant’s circumstances in relation to Direction 69 and is satisfied that on the weight of evidence that there is no apparent reason that would preclude the applicant from returning to his home country based upon military service obligations, political stability or any other factor.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including immigration and study history, circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
It is the finding of the Tribunal that the applicant is using the student visa stream to secure lifestyle and residency in Australia.
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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
Member
Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2022] AATA 4916

20 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction