Ashfaq (Migration)

Ashfaq (Migration) [2019] AATA 1318 (15 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Ashfaq
CASE NUMBER:  1712796
HOME AFFAIRS REFERENCE(S):           BCC2017/725716
MEMBER:Darren Renton
DATE:15 April 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 15 April 2019 at 10:56am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course to applicant’s future – business plan – not supported by verifiable evidence – disparity in earning capacity – personal ties to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 Immigration and Border Protection on 5 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 February 2017. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide further information to the Tribunal in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 21 February 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might have had under the Act to appear before the Tribunal to give evidence and present arguments.
In his response, the applicant indicated that he consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal, including the information previously provided by the applicant to the Department.
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
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 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 male applicant is a 35 year old Pakistani national who first arrived in Australia on 2 September 2012 as the holder of a Student (Class TU subclass 572) visa valid until 29 January 2014.
Prior to coming to Australia, the applicant completed secondary school at the Government College in Burewala in 2003. The applicant thereafter completed a Diploma of Associate Engineering in January 2011.
According to the delegate’s decision record, a copy of which the applicant provided to the Tribunal, the applicant has been enrolled in the following courses in Australia:
a.General English
b.Certificate IV in Business
c.Certificate IV in Business
d.Diploma of Business
e.Diploma of Business
f.Certificate III in Hospitality (Commercial Cookery)
g.Diploma of Marketing
h.Diploma of Management
i.Advanced Diploma of Marketing
j.Certificate IV in Hospitality (Commercial Cookery)
k.Advanced Diploma of Marketing
l.Diploma of Hospitality
m.Advanced Diploma of Business
n.Advanced Diploma of Business
o.Advanced Diploma of Management
At the time of application to the Department, the applicant was enrolled in Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and a Diploma of Hospitality. In the applicant’s s.359(2) response he provided confirmation of enrolment for the Certificate IV in Commercial Cookery and a Diploma of Hospitality which were due to conclude on 14 October 2018 and 14 April 2019 respectively. The Tribunal has read and had regard to these.
In his Genuine Temporary Entrant (GTE) statement dated 20 February 2017 provided to the Department, the applicant claims “to want to work as a key player in a challenging and creative environment, to be instrumental in an organization’s growth and to fully realise his own potential”. Since commencing his studies in Australia in 2012 the applicant claims to have “gained insight into Small to Medium Enterprises (SMEs), how businesses can succeed in a competitive environment and that he had acquired the skills to successfully run a business anywhere in the world”. The applicant claims he wanted to study commercial cookery in order to open a restaurant chain serving traditional Pakistani cuisine with international food.
The applicant’s claim that he wants to return home and open a restaurant chain is not supported by any verifiable or persuasive evidence demonstrating how such a venture would occur or where the resources would come from and consequently, is not accepted by the Tribunal. In this regard the Tribunal also notes that the applicant claimed in his s.359(2) response that he was sure that he would definitely get a job in a top rated hotel and restaurant in Pakistan as a chef (that is, as an employee rather than opening a chain of restaurants), and his dream was to secure such a position at the Pearl Continental Hotel. He further claimed that he expected to receive a salary of AUD$1,500 per month upon completion of his course.
The applicant did not provide any verifiable or persuasive evidence to support his claimed hope of a job in a top rated hotel in Pakistan or the expected salary of AUD$1,500 per month – consequently those claims are not accepted by the Tribunal. The Tribunal notes that in his application for a student visa the applicant claimed his previous employment in Pakistan earned AUD$3,000 per annum while the three (3) jobs he had undertaken since arriving in Australia had resulted in annual salaries of $12,960, $14,016 and $15,360 respectively. The disparity in financial remuneration is considered by the Tribunal to be a factor that would present a significant incentive for the applicant not to return to Pakistan. This is especially so in the absence of evidence of favourable economic circumstances awaiting the applicant in Pakistan.
Having regard to all of the applicant’s circumstances, the Tribunal is not persuaded that the proposed study will assist him to obtain employment or improve his employment prospects.
The Tribunal is concerned that the applicant’s study in Australia has consisted of short, inexpensive courses. A review of the delegate’s decision record further identifies that of the fifteen (15) courses enrolled in, seven (7) were cancelled and consequently not completed.
The lack of academic progress reflected in the preceding paragraph over a period of six and a half (6.5) years is considered by the Tribunal to be that of someone other than a genuine student. The Tribunal is not persuaded on the totality of the circumstances that the applicant’s studies in Australia demonstrate value to his future.
The Tribunal considers that the applicant has had ample opportunity to acquire commercial cookery skills since his arrival in Australia. His courses of study have been predominantly business and marketing related with some focus on hospitality and none have been beyond the VET sector. The Tribunal is not persuaded on the basis of the evidence provided that the applicant is not simply now proposing further short, inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.
The Tribunal accepts the applicant has no military service commitments, there are no concerns regarding civil unrest in Pakistan, or the political situation there, which would provide a clear incentive for him to not return there.
The Tribunal also accepts that the applicant’s wife and child are in Pakistan as are other members of his extended family including his mother and siblings. While these ties provide an incentive to return home at the completion of study, the Tribunal notes the extended time the applicant has spent in Australia and lived independently of them since he arrived here as well as the uncertain economic conditions to be faced by the applicant in search of employment either within the hospitality sector as a chef or in opening a chain of restaurants. The Tribunal is not satisfied in all the circumstances that they are sufficiently strong circumstances to militate against the incentive to remain in Australia.
Given the amount of time the applicant has now spent in Australia on student and associated bridging visas, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.
The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said that he will return home on completion of his studies, has family ties in Pakistan and all the other matters he has raised. The Tribunal has otherwise had regard to the factors set out in Direction 69.
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).
Consequently, 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.
Darren Renton
Member

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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.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
g.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;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.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
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
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.

[2019] AATA 1318

15 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction