Chaudhry (Migration)

[2018] AATA 626

Chaudhry (Migration) [2018] AATA 626 (27 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Zia Chaudhry

CASE NUMBER:  1724103

DIBP REFERENCE(S):  BCC2017/2825613

MEMBER:Mark Bishop

DATE:27 February 2018

PLACE OF DECISION:  Melbourne

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 Schedule 2 to the Regulations.

Statement made on 27 February 2018 at 11:15am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) _ Whether applicant genuinely intends to enter and stay as a student – Juvenile applicant – Whether applicant’s mother undertook research into education previously – Evidence of extensive research and planning undertaken

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212(a)

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 on 19 September 2017 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 8 August 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.

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) because the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 27 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

6. The applicant provided a copy of the decision record to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 intends genuinely to stay temporarily in Australia.

9. 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?

10. 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.

11. 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.

12. This application is one of four applications lodged by members of the same family. All of the applicants are juveniles. Their details are set out below:

    ·Case number 1724101          Eisha CHAUDHRY                DOB    4 April 2003

    ·Case number 1724103          Hassan CHAUDHRY             DOB    19 October 2004

    ·Case number 1724104          Mariam CHAUDHRY              DOB    31 January 2009

    ·Case number 1724107          Qasim CHAUDHRY               DOB    31 January 2009

13. The Tribunal wrote to the applicant on 1 February 2018 requesting the applicant provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

14. On 20 February 2018 the MA for the applicant wrote to the Tribunal. The MA advised “as the refusal grounds for the above applicants are similar and they are the family so we would like to provide one submission to support their cases. Please find here are :

    1.Submission;

    2.Annexure 1 – 9;

    3.Personal statement”.

15. As outlined in paragraph 14 above the applicant submitted as follows:

    ·Background to the various visa applications;

    ·Grounds of refusal by the delegate;

    ·The delegate was in error in finding the main purpose of getting the visitor visa under the tourist stream was to lodge an onshore student visa application in the short period of time after arriving in Australia on 28 July 2017 and it was the plan of the review applicants to lodge an onshore application before coming to Australia;

    ·The review applicant’s mother submitted the purpose of the trip to Australia was purely to visit family and the original plan had been to lodge the visa applications offshore but late granting of their visitor visa made it difficult if not impossible to leave Australia to lodge the visa applications offshore;

    ·This was because relevant school staff had requested the 2 older children attend an international Secondary School Bridging Program in order to meet entry requirements for secondary school in Melbourne;

    ·It was not possible to go offshore to lodge the visa applications because their visa had a “no further stay” condition attached to their tourist visa;

    ·The review applicant’s mother made further submissions addressing the progress of the 2 older children (completed bridging program) and the 2 younger children (currently studying year 4) and provided appropriate supporting documentation;

    ·The review applicant’s mother decided to transfer the 2 older children to a private school in Melbourne and those children currently attend that school;

    ·The review applicant’s mother addressed personal circumstances in Pakistan. The review applicant’s mother submitted her family, both immediate and extended, were wealthy business owners with major manufacturing concerns in Pakistan (the family owned company is the second largest manufacture of motorbikes in Pakistan and soon moving into car manufacturing) and it made little sense to shift such a major manufacturing concern to Australia at this time. Further if the review applicant’s father wished to come to Australia he could use the business visa pathway. It was more convenient at this time to send the children to Australia to receive a quality education and have them return home to Pakistan at regular intervals;

    ·The review applicant’s mother submitted evidence of cash and property holdings in Pakistan totalling many millions of dollars;

    ·The review applicant’s mother submitted her family was very wealthy and could easily afford to live in Australia, pay higher costs living costs in Australia as part of the responsibilities attached to having  their children educated in a modern country with high quality standards;

    ·The review applicant’s mother addressed the value of the course to the future. The    review applicant’s mother considered living in an English speaking country and accessing skilled and professional teachers as being critical to the development of her children both in their formative years and later potentially at University;

    ·The review applicant’s mother advised one of the reasons she and her husband wished their daughters to study in Australia was for reasons of gender equality as they cannot receive it in Pakistan. They wanted their daughters to have the equivalent in terms of rights, benefits, obligations and opportunities;

    ·The review applicant’s mother submitted her husband had been building his family company with a view to passing it in due course to his 2 sons and their ability to access a business education at University was important to the future of a large successful company;

    ·The review applicant’s mother submitted the children were attending school regularly, progressing satisfactorily and would return to Pakistan at the conclusion of their education. They chose Australia because Australian qualifications were well regarded internationally;

    ·Finally the review applicant’s mother submitted it was impractical and unnecessary for her husband to relocate his company to Australia at the current time and for that reason they did not access the business visa program. 

16. The review applicant’s mother submitted the following supporting documentation:

    ·Birth Certificates for all children;

    ·COE’s for all children with evidence of significant sums  paid for program fees or pre-paid tuition fees;

    ·Certificates of Graduation for English Language Bridging Programs;

    ·Statements of attendance from Thomas Carr College and Mossfield Primary School;

    ·School assessment reports;

    ·Further COE’s for the 2 older children for enrolment at Thomas Carr College with evidence of significant pre-paid tuition fees for the period 1 February 2018 until 21 December 2021;

    ·Picture of family manufacturing enterprises in Pakistan;

    ·Certificate from the Federal Board of Revenue, Pakistan detailing assets and liabilities (including cash at bank and withholding income tax) and net assets of the review applicant’s father;

    ·Bank statements  and Account Maintenance Certificates indicating sizeable balances;

    ·Statements of large bank deposits and balances in both Pakistan and Australia in the names of the review applicant’s mother and father;

    ·Further statement from the review applicant’s mother dated 20 February 2018 in considerable detail outlining the applicant’s and guardians immigration history, the applicant’s circumstances in Pakistan, the applicant’s potential circumstances in Australia, the value of the courses to the review applicant’s future and a closing statement addressing their desire to have their children educated in Australia as a sound preparation prior to re-joining their large wealthy family in Pakistan and integrating themselves with other member of their family in their businesses in Pakistan.

17. The MA lodged a late submission at 6.20pm the evening prior to the hearing. Consistent with dot point 4 in paragraph 15 above the submission read “…we would like to provide return tickets to show that the review applicants did not intend to apply for their student visa application onshore as they only plan to stay in Australia on tourist visa from 28 July 2017 to 18 August 2017.” The Tribunal has examined the tickets and booking details and they confirm the detail of the late submission provided by the MA. The Tribunal accepts it was the original intent of the review applicants to remain in Australia for a limited period of time and leave Australia on 18 August 2017.

18. The Tribunal has considered the decision record. The Tribunal notes the decision record is not binding on the Tribunal and the Tribunal will bring an independent mind to the review and make a new decision. The decision record makes the following points;

    ·The delegate was not satisfied the intentions of the review applicant to study in Australia was genuine. The delegate was unable to accept that a person travelling as a tourist  (the mother of the review applicant), leaving their family in their country of residence  would make such a significant change  from their initial intentions of travelling in Australia;

    ·The delegate found that whilst it was not uncommon to seek a good education or make a change in a study pathway  it was inconsistent with the behaviour of a genuine student to seek a change in the pathway of their study in their home country shortly after arriving in Australia on a tourist visa;

    ·The delegate believed the stated intention in this application would have included greater level of planning and preparation before arriving in Australia. Therefore the delegate believed the review applicant (in reality the mother) did not indicate the real purpose of travel upon arrival in Australia on 28 July 2017.

19. The Tribunal has reviewed all the above material.

20. The delegate has succinctly explained his reasoning. He does not accept the intent and hence scale of the proposed shift on the part of the review applicant and her siblings as explained in his submission and supplemented by his mother’s submission to study in Australia was genuine. The delegate believes there must have been considerable prior planning before the review applicant and his siblings arrived in Australia in July 2017.

21. The Tribunal considers this may well be the case. The Tribunal would be surprised if there had not been considerable family (both immediate and extended) planning and discussion as to the utility of such a significant shift for the children of the family. The review applicant’s extended family are all integrated in various parts of the family’s business in Pakistan. The review applicant’s immediate family are clearly wealthy, successful and presumably influential in Pakistan.

22. The review applicant’s parents have made a hard decision to seek to have their children educated in Australia. They have advanced cogent reasons for making such a decision. They have gone about the implementation of that decision in a methodical, forthright manner with the long term welfare of their children paramount. The Tribunal would be disappointed if there was no evidence of a significant degree of planning and preparation. This extends to scouting trips or investigatory behaviour on the part of parents.

23. The Tribunal regards it as eminently sensible for the mother of the review applicant to take a good hard look at schools in Melbourne and make an assessment of the worth of those schools. Those schools are critical in the formative years of the review applicant and her siblings. It has been common for parents of children to send those children to Australia to receive both primary and secondary schooling for at least the last fifty years. There is nothing new or different about parental planning and preparation on behalf of their children.

24. The Tribunal has further reviewed the evidence and the written submissions provided by the review applicant’s mother.

25. Amongst others cl.11(e) of Direction 69 is a  relevant here. It obliges the Tribunal to have regard to 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 could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements”.

26. In response to question from the  Tribunal the review applicant’s mother as advised as follows:

    ·She and the children visited Australia in 2016 to spend time with her brother and sister and their families who are resident in Australia. She spent approximately 6 weeks and observed closely the behaviour and conduct of her nieces and nephews who were attending Australian schools.  She observed they were well educated, well behaved, and well-groomed and were participating within their schools and the wider Australian community. She visited many places in Australia and liked what she observed.

    ·In 2017 she applied for a tourism visa with an intention to remain for 6-8 weeks. The visa was granted late and this late granting of her visa caused her to change her plans and necessitated a lodgement for student visa onshore, not offshore as initially planned. The Tribunal accepts this evidence.

    ·On this visit she visited schools, spoke with school administrators and educators, observed classes and received advice as to the appropriate way forward if she decided to educate her children in Australia.

    ·In discussion with her husband and her own family the decision was made to try and educate their children in Australia. She wanted her children to speak English well and wanted them exposed to the disciplines of Australian society without the influence of wealth. She wanted her children exposed to competition and success or failure after endeavour. The presence of her brother and sister was a positive factor.

    ·She did not wish to apply for permanent residence as the intent was for the children to be exposed to international education in a foreign country, not reside in that country indefinitely. Similarly her husband did not seek to apply for a business visa because he had a large company in Pakistan and it was simply impractical if not prohibitive to shift that company to Australia.

    ·The mother advised all of the review applicants wished to remain in Australia and enjoy the benefits of living in this country awhile. The eldest boy, one of the review applicants made it clear that after his education was completed in Australia it was his desire to return home to take over his father’s family business. The eldest girl, also on of the review applicants made it clear she enjoyed her school, liked the competitive aspects of learning and appreciated being exposed to gender equity in practice. In particular she liked the independence of approach and the lack of reliance of family support staff (maids and drivers). The review applicant observed that whilst she was a member of a wealthy family in Pakistan, and attended international schools in that country there was a noticeable difference in the quality of teachers and staff in her school.

    ·In summary it is clear from the evidence of the mother and the 2 older review applicants that the family have engaged in extensive research, preparation, planning and have made an informed decision that there are significant benefits from the children spending their formative years in the education system in Australia.

    ·This evidence supported the written submission made by the MA on behalf of the review applicants (s). In that submission the MA advised the mother whilst in Australia “wanted to inspect the schools for her children if she has time since her sister and brother in Australia had already checked the school facilities and they already did some researches about the school before coming to Australia”.

    ·This evidenced supported the written submission made by the MA on behalf of the review applicants (s). In that submission the MA advised the mother whilst in Australia “wanted to inspect the schools for her children if she has time since her sister and brother in Australia had already checked the school facilities and they already did some researches about the school before coming to Australia”.

1. In addition the mother of the review applicant made a lengthy submission. In part this submission directly addressed cl.500.212. The mother specifically addressed cl.500.212(c) “…any other relevant matter”. The review applicant’s mother addressed the disciplines of Australian society (no maids, no drivers, children doing their own chores, responsibility, work, respect, effort, attitudinal improvement, confidence from achievement and the ability of young females to study and work alongside young boys on the basis equal rights).

2. The review applicant’s mother  went onto provide detailed commentary as to English language courses, test results, admission to schools of their parent’s choice, their family’s detailed research and understanding about living in Australia and the intended course of study now and into the future for the review applicant and her siblings. The review applicant’s mother demonstrated a more than realistic level of knowledge of the proposed courses of study and living arrangements.

3. There is nothing in the schedule 2 criteria which prevents a visa applicant from applying for their first subclause 500 visa whilst they are in Australia holding a Visitor Visa (provided they are not holding a Visitor Visa under the Sponsored Family stream or Approved Destination Status stream. Instrument IMMI 16/016 contains the full list of visa that prevents an applicant from making a valid application for a subclass 500 visa onshore). The review applicant’s application for a Student visa does not come within the list of visas mentioned in IMMI 16/016.

4. Accordingly the Tribunal is of the view the application by the review applicant for a Student visa is entirely lawful and not prevented or prohibited by any Act, Regulation or Instrument.

5. The Tribunal has assessed the above application for a Student visa against the criteria set out in cl.500.212 and had regard to the factors set out in Ministerial Direction Number 69.

6. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

   Does the applicant intend to comply with visa conditions?

7. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

8. There is no evidence before the Tribunal which suggests the applicant will not comply with any conditions attached to his visa. Indeed the review applicant made it clear in his written submission he would comply with all visa conditions and restrictions (if any) at all times including leaving Australia if his visa should cease. The review applicant has complied with all conditions attached to his visa on previous visits to Australia. In past visits the review applicant has entered and departed Australia in a manner consistent with his then visa

9. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

   Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

10. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

11. The Tribunal is satisfied the applicant is a genuine applicant for entry and stay as a student 

    Conclusion on cl.500.212

12. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

13. 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.

14. 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.

    Mark Bishop