Ali (Migration)

[2020] AATA 5663

Ali (Migration) [2020] AATA 5663 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amir Ali

CASE NUMBER:  1933243

HOME AFFAIRS REFERENCE(S):          BCC2019/4437280

MEMBER:Robert O’Neill

DATE:21 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 September 2020 at 1:41pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information within the prescribed period –genuine temporary entrant criterion not met– using student visa to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363,499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212

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 8 November 2019 to refuse to grant the visa applicant Amir Ali (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 5 September 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 visa application was refused by the delegate 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) because the delegate did not consider him to be a genuine temporary entrant for entry and stay in Australia as a student.

4. It has now been more than a year since the applicant lodged his review application. In coming to consider the merits of his case, the Tribunal recognises that the applicant’s personal circumstances may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the application.

5. To this end, by letter dated 9 June 2020, the Tribunal wrote to the applicant inviting him pursuant to s.359(2) of the Act to provide information that could assist the Tribunal in determining his application (‘the Tribunal’s s.359(2) request’). The Tribunal’s s.359(2) request included a questionnaire that specifically invited the applicant to provide information about his personal circumstances, including information about:

   ·his education history overseas;

   ·his education history in Australia;

   ·his current course enrolments in Australia;

   ·previous Australian visa applications he has made;

   ·his immigration history in Australia and in other countries;

   ·his work experience in Australia and in other countries;

   ·his living expenses in Australia;

   ·his family;

   ·his property and assets;

   ·his plans, including job plans, once he completes his proposed course of study; and

   ·concerns he may have about military service commitments, or political or civil unrest in his home country.

6. The Tribunal’s s.359(2) request was sent to the last known address provided to the Tribunal by the applicant in connection with the present review. The applicant was advised that if the requested information was not provided in writing by the prescribed period (i.e., within 14 days following receipt of the request),[1] the Tribunal may proceed to make a decision without taking further steps to obtain the information. The Tribunal further advised that a failure to provide the requested information would result in the applicant losing any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

   [1] See Migration Regulations 1994 (Cth), reg 4.17(4)(b)(i).

7. The applicant did not respond to the Tribunal’s s.359(2) request by the specified deadline of 23 June 2020, or at all. By the operation of s.359C and s.360 of the Act, in circumstances where the Tribunal has invited the applicant to provide information pursuant to s.359(2) and the applicant has failed to do so within the prescribed period, the Tribunal may proceed to make a decision on review in the applicant’s absence. Furthermore, the effect of s.363A of the Act is that the applicant has no entitlement to a hearing and the Tribunal has no power to permit him to appear.[2]

   [2] Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has decided to proceed to make a decision having regard to all the information before it. This includes the information that was previously provided by the applicant to the delegate and information that may be discerned from the delegate’s decision itself.

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

   EVIDENCE AND FINDINGS

   Evidence in support of application

10. In support of his application, the applicant has relevantly provided only the material found in the departmental file. The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.

11. 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 the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

    Genuine applicant for entry and stay as a student (cl.500.212)

12. 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?

13. 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.

14. 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.

15. The Tribunal has considered all of these matters and sets out below the matters which it considers relevant in relation to them.

    Entry and visa history

16. The applicant in this case is a 31-year-old man from Pakistan who according to the delegate’s reasons for decision has held numerous student visas as follows:

Visa	Associated Course	Start Date	End date
TU 572	Diploma of Information Technology (Networking)	4 March 2008	5 April 2008
TU 572	Certificate IV in Information Technology (Multimedia)	5 April 2008	26 May 2010
TU 572	Diploma of Hairdressing Salon Management	12 August 2010	26 December 2010
TU 572	Certificate IV in Business and Diploma in Business	10 February 2011	15 March 2012
TU 572	Advanced Diploma of Marketing and Advanced Diploma of Management	10 May 2012	4 June 2012
TU 572	Advanced Diploma of Business, Advanced Diploma of Marketing and Diploma of Marketing	15 October 2014	2 December 2016
TU 500	Bachelor of Business	14 November 2016	31 July 2019

Time onshore

1. According to the delegate’s decision, the applicant first arrived in Australia on 16 March 2008 and since that time has had multiple trips offshore lasting from a few weeks to a few months.

   Study history

2. There is no evidence as to the applicant’s study history prior to arriving in Australia. He was aged 19 when he arrived.

3. Since his arrival in Australia, the applicant has been enrolled in the courses set out in the table above. The variety and lack of coherence to his studies, as set out above, is suggestive that the applicant is exploiting the student visa system consistent with a person who is not a genuine temporary entrant. In the absence of direct evidence to the contrary, the Tribunal draws the inference that that is what is occurring.

4. If the applicant completes his current course on time, that would result in the applicant having resided in Australia for a period of over 12 years.

   Evidence in support of application

5. The only material available to the Tribunal is the departmental file and his application for review form. The Tribunal has considered these in reaching its decision. All the factual matters set out below are drawn from those documents, primarily the delegate’s decision. The Tribunal has not assumed the accuracy of the delegate’s decision, but in circumstances where no other evidence is available and the facts relied on are said to originate from the applicant, has acted on that material.

   Applicant’s circumstances in their home country

6. The Tribunal has had regard to the applicant’s circumstances in Pakistan as follows:

   Reasons for not studying in home country

   ·No reason has been provided for not studying in Pakistan.

   Personal ties to home country

   ·The applicant has a wife and child in Pakistan. However, he has lived apart from them for more than 5 years since they returned to Pakistan.

   Economic circumstances in Australia as incentive not to return home

   ·The applicant has employment in Australia. He has no employment history in Pakistan.

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

   Applicant’s potential circumstances in Australia

7. The Tribunal has had regard to the applicant’s potential circumstances in Australia as follows:

   Applicant’s ties with Australia

   ·The applicant has lived in Australia for more than 12 years.

   Evidence visa program being used to circumvent the migration program

   ·The applicant has been enrolled in numerous courses and this is his 8^th application for a student visa.

   ·The courses he has studied do not give rise to a logical progression towards a career goal.

   ·The delegate reports a comment made by the applicant purporting to explain his choice:

   After studying and obtaining my qualifications I realised I need to learn the more about management and leadership and I increased my motivation and confidence and decided to continue studies leading to Advanced Diploma of Leadership and Management disciplines. Studying this course will allow me to understand a leadership and management role and give me the opportunity to really make a difference in a company. Organisations in every industry are looking for individuals with the right management capabilities and real leadership potential. That's why this comprehensive qualification is designed to enhance key skills and knowledge as a manager while providing me with the expert insights for when I have the opportunity to become an effective leader

   ·. The comment is generalised and provides no insight into a connection between the course and the applicant’s career plans beyond the superficial.

   Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course

8. The applicant provided the Tribunal with no information on these topics. In the absence of a proper explanation of his career plans, they are of very little weight in any event.

   Consideration

9. The Tribunal finds that the applicant has economic incentive to remain in Australia due to his past and current working history in Australia, particularly considering the applicant has no work history in Pakistan. Further, he has spent almost his whole adult life in Australia, since the age of 20. Based on the lack of asserted or demonstrated assets or secured employment there, the Tribunal does not consider that the applicant has strong economic or financial ties that constitute an incentive to return to Pakistan.

10. The Tribunal considers that notwithstanding his family there, the applicant’s family or social ties do not present as a significant incentive to return to Pakistan, nor is there any evidence of particular ties to Australia, other than the fact the applicant has lived here for 12 years.

11. The Tribunal considers the fact that he has left his family in Pakistan for the past 5 years a significant indicator that family ties are not a strong incentive to return home.

12. The Tribunal is troubled by the length of time that the applicant is intending on spending onshore, being over 12 years. The Tribunal considers that the fact in and of itself is strongly indicative of an intention to remain on a more permanent basis. In the absence of any direct evidence to the contrary or detailed explanation of the value of his studies to his future plans, the Tribunal draws the inference that such is the applicant’s intention.

    Immigration history

13. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations. That is a matter in the applicant’s favour. However, the sheer number of student visas applied for is suggestive of exploiting the immigration system, and in the absence of direct evidence to the contrary the Tribunal draws the inference that that is what is occurring.

    Any other relevant matters

14. The Tribunal did not consider any other matter raised by the applicant to be significant to the application for review. The Tribunal has considered the other factors set out in Direction No.69 but does not consider they are of any weight in the circumstances of this case.

15. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student. The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant. The Tribunal considers that the applicant has failed to establish such circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant.

16. Considering the above individually and collectively, the Tribunal is not satisfied that the applicant genuinely intends to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

17. 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

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

    Robert O’Neill
    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;

    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 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.