Alhaj Ali (Migration)

[2020] AATA 3038

Alhaj Ali (Migration) [2020] AATA 3038 (21 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ayman Abdalkarim Zakariya Alhaj Ali

CASE NUMBER:  1916057

HOME AFFAIRS REFERENCE(S):          BCC2019/1659329

MEMBER:Brian Camilleri

DATE:21 May 2020

PLACE OF DECISION:  SYDNEY

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl. 500.212 of Schedule 2 to the Regulations.

Statement made on 21 May 2020 at 4:10pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – applicant’s arrival for temporary work – enrolment in Fitness courses – plans to open a business in Jordan – steady academic progress – relevance of studies to future employment – family commitments in home country – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 19 June 2019 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 3 April 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.

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) the applicant did not comply with the genuine temporary entrant criterion.

4. On 027/11/2019 the Tribunal wrote to the applicant pursuant to s.359 (2) of the Act, inviting the applicant to provide information in writing of the courses he was undertaking and his study and stay in Australia. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 11/12/2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360 (3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 complied with the genuine temporary entrant criterion.

   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, 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 his 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.

    Applicant’s circumstances in home country

11. The applicant has not married and has declared no dependant family members residing with him in Australia. The applicant has not provided evidence of his financial capacity in Australia or any financial assets in his own name in his home country. The applicant has personal ties to his home country in the form of his parents and siblings. These personal ties do not appear to serve as a significant incentive to return when considered against the fact the applicant has no financial ties to his home country The crisis in his father’s health persuaded him to make life changes and what started as a  hobby (fitness) turned into a career choice.

12. The applicant has not provided any substantive evidence of his father’s illness or evidence of his gym membership status.  It is assumed that the applicant’s father (born 01/01/1938) is aged at least 78 years. It took about 4 years after the applicant’s first arrival from Jordan to reach a decision to study fitness in Australia. Whilst these connections to home country appear very tenuous there are other factors to consider below in conjunction with the circumstances in his home country.

    Applicant’s circumstances in Australia

13. The applicant completed a Bachelor in Science in Accounting at AL- Ahilyya Amman University, Jordan in 2006, Certificate III in Spoken and Written English at The Eagle Academy in 2014 and a Certificate IV in Business at The Eagle Academy in 2015. The applicant held Temp Work (Skilled) (Class UC–Subclass 457) visa. The purpose of this visa was to allow the applicant to work in Australia. But the applicant has not provided much information explaining his work experience in Australia. On 02/04/2019,  just one (1) day prior to the expiry of the applicant’s 457 visa, the applicant lodged his current application for a Student TU-500 Vocational Education Sector Student visa, proposing to extend his stay in Australia until 18/06/2021 to study Certificate III and Certificate IV in Fitness. By then, the applicant would have spent approximately seven and a half years residing in Australia as the holder of temporary visas. The substantial change of field in study from Accounting and Business to fitness raises significant concerns of the applicant’s primary motivations to apply for a student visa as a device to secure ongoing residency in Australia rather than genuine interest in the proposed study and academic progression but these are not the only factors to be taken into consideration.

14. The applicant has declared that he wants to open a health club and training centre in Jordan to encourage fitness among Jordanians and train each according to his needs. The applicant has not provided any evidence of how the Fitness qualifications that the applicant was/is proposing to study will contribute to his career upon returning to his home country and has he not provided any evidence to support his intentions of opening a business in Jordan, such as business plans, lease agreements or market researches. However, it would on the whole be too much (as at the date of this decision). to expect such plans, agreements and research to be  made far out from the conclusion of his studies in 2021.

    Applicant’s Movement and immigration history

15. The applicant has been residing in Australia on temporary visas for over 6 years. The current application, the refusal of which is under review, would allow the applicant to remain onshore until 18/06/2021. The change of direction from finance manager to fitness instructor and businessman is a radical diversion from his previous study trajectory. But it does not mean that the change is not genuine. Several years elapsed between his visit to Jordan (2015) and his application for a student visa but the fact is that at this point in time he has already completed one of the courses which were contemplated by the visa application and has undertaken another.

16. The Tribunal had access to the applicant’s movement and immigration history. It shows that the applicant arrived in Australia on 03/01/2014 and since then has made the following trips to and from Australia.

Trip	Departure from Australia	Arrival in Australia
3	05/06/2018	25/07/2018
2	19/09/2015	03/10/2015
1	First Arrival	03/01/2014

Applicant’s academic history and academic progress

1. At the time of making this decision the Tribunal had available to it the applicant’s academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at 12/03/2020). It showed the courses undertaken by the applicant. Those courses successfully completed are described as “Finished”. Cancelled courses were recorded as “Cancelled”.

Course	Status
Certificate IV in Fitness (commenced on 15/04/2019 and will be concluded 18/04/2021)	Studying
Certificate III in Fitness (commenced on 15/04/2019 and completed on 12/04/2020)	Finished
Advanced Diploma of Management	Cancelled
Advanced Diploma of Business	Cancelled
Advanced Diploma of Business	Cancelled
Diploma of Business (commenced on 24/08/2015 and completed on 01/04/2016)	Finished
Diploma of Business	Cancelled
Diploma of Business	Cancelled
Diploma of Business	Cancelled
Certificate IV in Business (commenced on 15/09/2014 and completed on 30/03/2015)	Finished
Diploma of Business	Cancelled
Certificate III in Spoken and Written English (commenced on 03/02/2014 and completed on 18/08/2014)	Finished

Value of the course(s) to the applicants future prospects

1. The applicant holds a Bachelor in Science and Accounting and he has experience in Financial and Insurance Services.  It would appear that those qualifications alone would be sufficient to make his future career in Jordan.  He claims to be seeking a career to improve the wellbeing of himself and others. Whilst this is commendable it has to be conceded that the fitness business is a long way from the financial disciplines he has been perusing until now. The applicant has not provided any evidence to support his claims that studying Certificate III and Certificate IV in Fitness will increase his chances for better future career in Jordan. However, to do so - so far out from an actual return to Jordan would be hypothetical and far into the future and of very limited value (at this stage of the review proceedings) even if that information were available.

   Facts at the time of the Tribunals decision

2. It must be borne in mind that the Tribunal is required to make its decision at the time the matter under review is being considered (i.e. the date of this decision) and not as at the date of the delegate’s decision. In this case the decision under review (i.e. at the time it was made by the delegate) was entirely proper and reasonable but that was a long time ago and it was a distinct possibility (as occurs frequently) that having attained the student visa the visa holder would then not commence studies or nor pay fees and by some other device manage the cancellation of the course whilst staying in this country for some other purpose but not to study. This has not happened here.

3. The applicant has not sat on his hands and allowed the clock to run down in his favour so that he achieved the extension without the study completion. Given the long time it has taken for the Tribunal to be constituted and the fact that the applicant has utilised the time, completing one course and having commenced another course (concluding in just a little over a year from now), the Tribunal concludes that it would not be reasonable to uphold the refusal decision and compel the applicant to return to Jordan and so “write off” the investment in the successful completion of one course and the commencement of another course his is studying. The conclusions of this review would have been different if the Tribunal had been constituted within a short time after the application had been lodged to as the delegate’s decision carried obvious and decisive weight (at the time it was made).

   Other relevant matter

4. The Tribunal has considered whether there are any other relevant factors to be taken into account and has determined there are no other relevant factors. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets requirements of cl. 500.212(a).Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

5. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa: cl. 500.212 of Schedule 2 to the Regulations.

   Brian Camilleri

   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 he 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 he 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 his previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in his 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 his 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 his home country

   9.When considering the applicant’s circumstances in his home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in his 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 his home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to his home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to his 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 his 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 his 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;

   dwhether 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 his 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 his 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 his 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 his current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in his 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 his 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 his 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 he complied with the conditions of his visa and left before his visa ceased, and if not, were there circumstances beyond his 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 he 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.