Atta (Migration)

[2019] AATA 2141

Atta (Migration) [2019] AATA 2141 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Uzma Atta
Mr Muhammad Bilal
Master Muhammad Hunayn
Master Muhammad Huzaifa

CASE NUMBER:  1711906

HOME AFFAIRS REFERENCE(S):           BCC2017/779486

MEMBER:Adrienne Millbank

DATE:5 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 05 March 2019 at 3:49pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – multiple courses completed – intention to study in field unrelated to and at lower level than previous studies or employment – no effort to utilise knowledge or skills obtained – insufficient evidence and supporting detail – incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Immigration and Border Protection on 19 May 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 applicant is a 30 year old citizen of Pakistan. She has a Bachelor of Arts and a Bachelor of Education from Pakistan, and worked in Pakistan as a teacher before marrying. She first arrived in Australia on 23 October 2012 on a dependent Student visa, to join her husband. At hearing, she advised that her husband completed his Master’s Degree in Professional Accounting, and has since remained and worked in Australia as a taxi driver. She advised that she has not worked in paid employment in Australia. She has three young sons, born in Australia on 2 January 2014; 29 February 2016; and 15 May 2017. The two older sons are included in the review application.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that she has enrolled in, and finished, the following courses.

   • IELTS Preparation: 17 December 2012 – 25 January 2013.
   • Certificate IV in Small Business Management: 4 February 2013 - 4 August 2013.
   • Diploma of Management: 2 September 2013 – 2 March 2014.
   • Diploma of Business: 28 April 2014 – 23 November 2014.
   • Diploma of Marketing: 24 November 2014 – 21 June 2015.
   • Advanced Diploma of Business: 3 August 2015 – 28 February 2016.
   • Advanced Diploma of Leadership and Management: 4 April 2016 – 1 January 2017.
   • Diploma of Accounting: 20 February 2017 – 19 November 2017.
   • Advanced Diploma of Accounting: 4 December 2017 – 2 December 2018.

5. At the time of application the applicant was enrolled in the Diploma of Accounting and Advanced Diploma of Accounting courses, proposing to extend her stay in Australia for approximately two years, to the end of 2018.

6. The Delegate in this case refused to grant the visas 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 Delegate noted in the decision record of 19 May 2017 that the applicant had already spent sufficient time in Australia to complete any study plans she had, and seemed unmotivated to go home and implement the knowledge acquired during the preceding four and a half years. The Delegate was not satisfied that the applicant was a genuine student intending to stay in Australia temporarily, and concluded that she was using the Student visa program as a means of extending her stay in Australia.

7. At the time of decision the applicant is enrolled in a Certificate IV in Commercial Cookery course from 11 March 2019 – 12 July 2020; and a Diploma of Hospitality Management course from 13 July 2010 – 10 January 2021, proposing to extend her and her family’s stay in Australia for a further two years, to early 2021.

8. The applicants appeared before the Tribunal on 19 February 2019 to give evidence and present arguments.

9. The applicants were assisted in relation to the review by their registered migration agent, who attended the hearing.

10. The hearing was conducted with the assistance of an Urdu interpreter.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 who are applicants for the visa need only satisfy the secondary criteria.

13. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student because she intends genuinely to stay in Australia temporarily.

14. 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.

15. 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.

16. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

17. The Tribunal put to the applicant that she has been in Australia on Student visas for over six years, during which time she has obtained one Certificate and seven Diplomas in the area of business, marketing and accounting, but has not returned home to utilise her qualifications to obtain employment as a business manager, as per her stated intentions at the time of application. The Tribunal asked the applicant whether she has sought employment in Pakistan since her arrival, and whether she has worked in Australia. She stated that she has not sought paid employment in Pakistan or Australia.

18. The Tribunal acknowledges the applicant’s explanation that she has been too busy having children and caring for her family to enter into paid employment, but notes that the purpose of the Student visa program is not to enable a couple to reside in Australia while they form their family. The Tribunal further notes that the presence of the applicant’s husband and children here with reduces her incentive to return to her home country.

19. Adopting the procedures in s.359AA of the Act, the Tribunal provided the applicant with a copy of her PRISMS records and advised her that, subject to any comment or response she may wish to provide, this comprised information that would be the reason or part of the reason for affirming the decision under review. The Tribunal advised the applicant that it suggested that she was not a genuine student and that she was using the Student visa program to maintain residence in Australia. The Tribunal advised the applicant that her PRISMS record showed that:

    • she has enrolled in courses not consistent with her level of education;
    • she has undertaken a series of short, inexpensive courses;
    • she intends to study in a field unrelated to and at a lower level than her previous studies or employment; and
    • she has completed a large number (specifically, eight) certificate and diploma level courses in the area of business, accounting and management without returning home to utilise the knowledge or skills obtained from these courses.

20. The Tribunal advised the applicant that she could seek an adjournment and consult with her representative before responding to the Tribunal’s concerns arising from her PRISMS record. The applicant sought one ten-minute adjournment, following which she advised that her original intention as set out in her Genuine Temporary Entrant statement provided to the Department, namely, to return to Pakistan to assist her ageing father to manage his businesses, changed last year. She provided a copy of a death certificate, showing that her husband’s father died on 22 March 2017. She claimed that she and her husband, the second-named applicant, now intend, with her husband’s inheritance, to return to Pakistan to open a small restaurant/hotel business, and it is for this reason that she has enrolled to study cooking and hospitality management.

21. No evidence such as research conducted, a business plan or costings, or the amount or nature of the second named applicant’s inheritance, was provided to support the applicant’s claims to be enrolled in studies relevant to and in preparation for opening a restaurant and hotel business in Pakistan. The applicant stated that her husband’s inheritance is yet to be finalised, and that their intention is still at the idea rather than concrete planning stage.

22. The Tribunal asked the applicant to explain whether and how she expected to be better remunerated as a cook than as a teacher, accountant or business manager. The applicant stated that she did not intend to be a cook, but that her Certificate IV level training in Commercial Cookery would equip her to supervise kitchen staff. She claimed that there are no cookery courses in Pakistan suitable to her particular hands-on supervisory needs; that Australian courses are superior in their structure; and that Australian cookery and hospitality courses are highly valued by Pakistani employers. The Tribunal notes that if the applicant and her husband opened their own business, they would not be reliant on Pakistani employers, and that, in any event, the applicant already holds an impressive number of Australian qualifications, including a Certificate IV in Small Business Management.

23. The Tribunal accepts that the applicant’s father-in-law died in March 2017 and that her husband benefitted or will benefit in a property settlement, but does not accept, on the evidence provided, that this justifies the applicant prolonging her stay for a further two years.  Insufficient evidence and supporting detail was provided to satisfy the Tribunal that the applicant’s future prospects and remuneration would be enhanced by the proposed further study. The proposed further study would extend the applicant’s stay in Australia to nine years. The Tribunal notes that the applicant switched to cookery and hospitality management courses only after exhausting certificate and diploma level options in the business, accounting and management areas.

24. The applicant advised at hearing that she has returned to Pakistan only twice since arriving in Australia in August 2012, for two months in 2014, and six weeks in 2016. She explained that it was too difficult to travel during pregnancies and with young children to visit her parents and brothers in Pakistan more often. As noted, the applicant’s husband and three young sons are with her in Australia, and neither she nor her husband have employment to return to in Pakistan, beyond the claimed idea of opening a restaurant and hotel business. No evidence was provided that the remuneration the applicant and/or her husband could expect to achieve running such a business in Pakistan would compare favourably with income the family is receiving from the applicant’s husband’s work as a taxi driver in Australia, such as to be an incentive to return home.

25. The time the applicant has already spent in Australia on Student visas in itself raises doubts regarding her claim to be an applicant for genuine temporary entry. While she has successfully completed her courses, the Tribunal finds her immigration and study history, whereby she has not returned to obtain the employment she claimed was her purpose for studying, but rather has remained and formed a family, to suggest that her Student visa applications, in including this application, have been intended primarily for maintaining residence in Australia.  

26. The Tribunal notes that the applicant has only visited Pakistan twice to visit her parents and brothers; that her husband and children are here with her; and that her husband is employed in Australia. On the information and evidence provided, the Tribunal is not satisfied that the applicant’s personal ties and economic circumstances in Pakistan provide an incentive for her to return to her home country.

27. The applicant confirmed at hearing that neither she nor her husband have reason to fear or otherwise not want to return to Pakistan, such as political and civil unrest, or military service commitments. The applicant also confirmed at hearing that neither she nor her husband have applied for visas other than Student visas to remain in Australia, and that that neither she nor her husband have applied for or been refused visas to enter any other country. There is no information or evidence before the Tribunal to indicate that the applicant has not complied with any previous travel or visa requirements.

28. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

29. On the basis of the applicant’s immigration and study history, having considered her claims and circumstances in accordance with the Ministerial Direction, as discussed 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).

30. Accordingly, 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.

31. 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.

32. As the primary applicant does not meet cl.500.212, the second, third and fourth named dependent applicants do not meet cl.500.311.

    DECISION

33. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Adrienne Millbank
    Member