Dayan (Migration)

[2021] AATA 4353

Dayan (Migration) [2021] AATA 4353 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Dayan

CASE NUMBER:  2101547

HOME AFFAIRS REFERENCE(S):          BCC2019/17525

MEMBER:Frank Russo

DATE:26 October 2021

PLACE OF DECISION:  Sydney

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

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 26 October 2021 at 9:41am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit Court remittal – genuine student – adverse information – enrolment record – updated statement of purpose and enrolments – return visits to Pakistan – plans to start construction business in Pakistan – reasonable academic progress – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2 cls 500.212, 500.611

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 12 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 January 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 27-year-old national of Pakistan. He first arrived in Australia on 22 June 2013, to undertake a Bachelor of Professional Accounting, which he completed in December 2016. He was granted a Temporary Graduate (subclass 485) visa on 3 March 2017, which was granted until 3 March 2019. On 24 January 2019 he applied for the Student visa under review, which was in respect of his enrolments in a Diploma of Leadership and Management and a Graduate Diploma of Management (Learning), with the end date for his proposed studies being 7 April 2021.

5. As noted above, on 12 March 2019, the delegate refused the grant of the Student visa. Amongst other things, the delegate noted that the applicant had not provided a statement of purpose. On 28 March 2019 the applicant applied to the Tribunal for a review of the visa refusal decision. In addition to the application form, the applicant provided the Tribunal with a copy of the delegate’s reasons for decision and the Department’s notification of the decision.

6. On 15 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information in writing about the course(s) of study he is undertaking and his entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 29 April 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant provided a response to the s.359(2) invitation on 29 April 2020, and provided the Tribunal with the following documents:

   a.A completed ‘Request for Student Visa Information’ form (Form M17);

   b.A statement from the applicant;

   c.Confirmations of enrolment (CoE) for a Certificate IV in Building and Construction (Building) at Unity School of Healing and Naturopathic Centre from 15 February 2020 to 15 February 2021 and a Graduate Diploma of Management (Learning) at TasCollege from 29 March 2021 to 27 March 2022;

   d.Completion letters for the Diploma of Leadership and Management, issued by TasCollege on 9 September 2019;

   e.Overseas student health cover;

   f.Affidavit of support from the applicant’s father and banking information;

8. In his s.359(2) response, the review applicant indicated in the Form M17 under the subject of ‘Hearing information’ that he consented to the Tribunal deciding the review without a hearing. The applicant thus gave consent under s.360(2)(b) of the Act to the Tribunal deciding the review without the applicant appearing before it, and therefore, pursuant to s.360(3), the review applicant was no longer entitled to appear before it.

9. On 14 September 2020, the Tribunal (differently constituted) made a decision in relation to the application for review. The Tribunal (differently constituted) made a decision on the papers without holding a hearing and affirmed the decision under review.

10. The applicant made an application for review to the Federal Circuit Court, and on 27 January 2021 the Federal Circuit Court ordered by consent that the decision of the Tribunal (differently constituted) dated 14 September 2020 be quashed and remitted the matter back to the Tribunal to determine the review according to law, on the basis that the Tribunal (differently constituted) did not comply with the obligation under s.359A of the Act to give the applicant clear particulars of any information which it considered would be the reason, or part of the reason, for the Tribunal (differently constituted) affirming the delegate’s decision, in particular the Tribunal did not put to the applicant adverse information from his Provider Registration International Student Management System (PRISMS) enrolment record.

11. On 12 February 2021, the Tribunal wrote to the applicant to acknowledge that the Federal Circuit Court had remitted the application for review to the Tribunal for reconsideration. The Tribunal’s letter indicated that the application for review would be re-allocated to a Member of the Tribunal, and the Member may do one of a number of things in relation to the application for review, including seeking further information, seeking comments or responses to particular information, invite the applicant to attend a hearing or make a decision.

12. The Tribunal notes that on 29 April 2020, the applicant gave his consent to the Tribunal deciding the application for review without a hearing, and therefore pursuant to s.360(3), the review applicant is no longer entitled to appear before it.

13. On 29 September 2021, the Tribunal wrote to the applicant, to put to him particulars of information from his PRISMS enrolment record which may have been the reason, or part of the reason, for the Tribunal affirming the decision under review, and inviting him to respond to the information in writing by 13 October 2021. The Tribunal’s letter of 29 September 2021 noted, amongst other things, that in his s.359(2) response provided to the Tribunal (differently constituted) on 29 April 2019, the applicant had waived any right to appear before the Tribunal, and therefore, he is no longer entitled to appear before the Tribunal.

14. In his response, provided on 12 October 2021, the applicant provided the Tribunal with five documents, including a statement of purpose, in which he requested a telephone hearing if the information he provided did not answer all of the Tribunal’s questions. The Tribunal reiterates however that the applicant has waived any right to appear before the Tribunal, and therefore pursuant to s.360(3) of the Act, the review applicant is no longer entitled to appear before it. The Tribunal has therefore proceeded to decide the application for review on the material and information before it.

15. Further, after considering the material before it, the Tribunal finds that there is sufficient basis for deciding the review in the applicant’s favour, and accordingly pursuant to s.360(2)(a) of the Act, no hearing would otherwise be required.

16. The applicant was assisted in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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 is a genuine temporary applicant for entry and stay as a student.

19. In addition to the documents referred to above, on 12 October 2021 the applicant provided a response to the Tribunal’s s.359A invitation in relation to particulars of information from his PRISMS enrolment record. In his response the applicant provided an updated statement of purpose, a progress letter from TasCollege regarding the applicant’s enrolment in the Graduate Diploma of Management (Learning), completion letters from TasCollege regarding the Diploma of Leadership and Management, a confirmation letter from Education Centre of Australia regarding the applicant’s enrolment in Accounting PYP from 24 March 2018 to 21 January 2019 and proof of his father’s ownership of property.

20. The Tribunal also has a copy of the Department file, and has considered the documents contained on that file.

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

21. 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?

22. 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.

23. 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.

    Background information – delegate’s reasons for decision

24. According to the delegate’s reasons for decision, a copy of which the applicant provided to the Tribunal, the applicant was granted his initial Student visa on 13 June 2013 and first entered Australia on 22 June 2013. He was then granted a 485 visa from 3 March 2017 to 3 March 2019. The delegate noted that the applicant applied for the Student visa under review on 24 January 2019, and considered timing of the lodgement of the Student visa was indicative of a person seeking to extend their stay in Australia. Amongst other things, the delegate noted that the applicant had completed a Bachelor of Professional Accounting in Australia, and considered that he was regressing in his studies by proposing to study a Diploma of Leadership and Management and a Graduate Diploma of Management (Learning), and that this ‘regression of studies’ raised concern that he was using the Student visa programme to maintain ongoing residence in Australia. The delegate also noted tat the applicant had not provided a statement of purpose with his visa application, and therefore the applicant did not demonstrate a number of factors relevant to the assessment to be undertaken under Direction No.69.

    Applicant’s s.359(2) response and undated statement of purpose, provided April 2020

25. The applicant provided the Tribunal with a signed, though undated, GTE statement. In his statement, the applicant states that he had completed a Bachelor of Professional Accounting in November 2016 and he was proposing to complete a Certificate IV in Building and Construction and a Graduate Diploma of Management (Learning). He states that while he held the 485 visa from 2017 to 2019, he undertook a professional year in Accounting to upgrade his skills, during which he did an internship. He states that while he did the intern ship he felt he had a lack of leadership and management skills. He states that he looked for Leadership and Management courses in Pakistan, but didn’t find any which met his requirements. He notes that he completed the Diploma of Leadership and Management at TasCollege in February 2019, after which he enrolled in the Certificate IV in Building and Construction at Unity School of education because he had always had an interest in the construction industry and he was encouraged by recent growth in the construction industry in Pakistan. He states that he plans to start a construction business in Pakistan when he completes his study. He states that to start a business one needs skills in accounting and leadership and management, and he will have these after he completes the Graduate Diploma of Management (Learning).

26. In his s.359(2) response to the Tribunal, the applicant stated that he arrived in Australia on 22 June 2013, and that he had previously completed high school in Pakistan. He provided no employment history in Pakistan. He stated that he had previously held two Student visa, the first from June 2013 and the second from October 2016, following which he was granted a 485 visa for two years from March 2017. He states that he has returned to Pakistan on three occasions, in December 2015, December 2016 and October 2018.

27. In terms of his enrolment history, he states he completed a Bachelor of Professional Accounting from June 2013 to November 2016, following which he undertook a Professional Year Program in Accounting through ECA Institute from February 2018 to January 2019. He completed a Diploma of Leadership and Management at TasCollege from February 2019 to February 2020. He acknowledges that he had an enrolment in the Graduate Diploma of Management (Learning) at TasCollege, which he did not commence. He then enrolled in a Certificate IV in Building and Construction (Building), which he commence din February 2020 and was due to complete in February 2021. He indicated that he had a future enrolment in the Graduate Diploma of Management (Learning) from March 2021 to March 2022.

28. The applicant states that he has reviewed many educational institutes in Pakistan, but they are not up to the same standard as courses in Australia. He states that he found that only courses of four to six months duration were offered, which do not cover all aspects of information required. He states that both the Certificate IV in Building and Construction and the Graduate Diploma of Management (Learning) will play a big part in his future, and he refers to his attached statement.

29. The applicant listed his employment at 7-Elevens from June 2014 to June 2018, then as an Uber driver from February 2019 and heavy rigid vehicle driver from March 2020, however he did not provide details of annual salary.

30. In terms of his family members, the applicant has listed his parents and two sisters, all of whom are in Pakistan. He did not provide details of any family members in Australia. He states that he calls his family every day when he has time, and that he visits his family during summer breaks from college. In terms of community ties in his home country, the applicant states that he has strong community ties with his family, and that he is the only son in his family, so according to tradition, he must support his family. He claims that he does not have community ties in Australia and that his aim and focus is on his studies.

31. In terms of assets, the applicant lists a car and bank account in Australia, as well as a home and car in Pakistan. The applicant states that his future plans are to open his own construction business in his home country. He claims that his studies will assist him to run a successful business in Australia and that if he applies for jobs in Pakistan, he could expect to earn 250,000 to 300,000 RS per month. He claims that he will have an ‘edge’ over local candidates.

32. In the applicant’s updated GTE statement, he states that after he completed his Bachelor degree he applied for the 485 visa and chose to study the professional year in Accounting to upgrade his professional skills. He states that he did an internship as part fo this, and while doing so he felt he lacked leadership and management skills. He looked for courses in Pakistan, but they did not meet his requirements. He states that after completing the Diploma of Leadership and Management he commenced the Certificate IV in Building and Construction as he has always had an interest in the building industry and notes there is growth in this industry in Pakistan. He states that he plans to start ‘our’ construction business when he returns to Pakistan, and refers to various programs and projects in Pakistan which may provide opportunities. He states that to have a successful business you should have skills in accounting, leadership and management, and he will have these after completing the Graduate Diploma of Management (Learning). He states that he hopes with the skills he obtains he can expand his business throughout Pakistan. He states that both of his proposed courses are important to his future.

    PRISMS enrolment record and response from the applicant

33. On 29 September 2021 the Tribunal provided the applicant, using the procedure set out in s.359AA of the Act, with a copy of his enrolment record from the PRISMS database. The Tribunal put the following particulars of information to the applicant regarding his enrolment record:

    a.He was enrolled in a Bachelor of Professional Accounting from 15 July 2013, which he completed on 31 December 2016;

    b.He was not enrolled in a registered course of study between 31 December 2016 to 4 February 2019, a period of over two years until he was enrolled in the Diploma of Leadership and Management. He had two enrolments in the Diploma of Leadership and Management. The first was cancelled on 19 September 2019 because ‘Provider unable to deliver course’. He finished the second enrolment on 2 February 2020, the original date scheduled for completion of this course;

    c.He had an enrolment in the Graduate Diploma of Management (Learning) which was to commence on 10 February 2020 and end on 7 February 2021. This enrolment was cancelled on 12 March 2020, with the stated reason being ‘Non-commencement of studies’;

    d.He was enrolled in a Certificate IV in Building and Construction (Building) from 15 February 2020 to 15 February 2021, which he finished; and

    e.He commenced the Graduate Diploma of Management (Learning) on 29 March 2021 and is currently studying this course, with an end date of 27 March 2022.

1. The Tribunal raised various concerns about this enrolment history and gave the applicant an opportunity until 13 October 2021 to comment or respond in writing to these potential concerns. The applicant responded on 12 October 2021 by providing a further updated statement of purpose, a letter regarding his enrolment in the professional year in Accounting, course results for the Diploma of Leadership and Management, a Progress letter from TasCollege regarding his enrolment in the Graduate Diploma of Management (Learning) and documents relating to his father’s property ownership.

2. In his updated statement of purpose, provided on 12 October 2021, the applicant states that after completing the Bachelor of Professional Accounting in December 2016, he enrolled in the professional year of Accounting, which he completed on 1 January 2019. He stated that this helped him develop skills in preparing business activity statements, tax lodgements and understanding business reports. He stated that he studied this course because he always had the intention to improve his skills in accounting professionally. He states that after this he enrolled in the Diploma of Leadership and Management on 4 February 2019 with TasCollege. He states that his education provider was not able to deliver the course, hence his enrolment was cancelled. However, TasCollege updated his CoE for this course on 8 September 2019 and the units he had previously studied for this course were transferred to his new enrolment in the same course. He states that the reason why he studied this course was because he wants to improve his understanding of management skills within a company, including managing meetings, identifying risks, recruitments and human resources policies, marketing, and how to resolve work conflicts and develop strategies.

3. The applicant states that the reason why he chose to study the Certificate IV in Cuilding and Construction prior to commencing the Graduate Diploma of Management (Learning) was because he wishes to start his own property development business in Pakistan, as many of his family members are involved in this business. He states that the government in Pakistan ahs also offered tax incentives for builders, and there is increasing demand for property investment. He states that his parents each own between 120-125 sq yards of land in Karachi and they are planning to buy more land to construct residential developments. He states that his plan was to gain a basic knowledge of building and construction, such as information about building materials, building ventilation and procedures for granting approvals.

4. The applicant also states that he has completed 63% of the Graduate Diploma of Management (Learning) and will complete his course in March 2022. He states that he has only three remaining units to complete.

   Consideration of the factors in Direction No.69

5. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account all the relevant information, the Tribunal is satisfied that the applicant genuinely intends to stay in Australia temporarily for the reasons set out below.

6. The Tribunal notes in particular that over two years and nine months has passed since the delegate’s decision. In this time, the applicant has completed the Diploma of Leadership and Management. The Tribunal has some concerns that the applicant did not proceed to undertake his enrolment in the Graduate Diploma of Management (Learning) as proposed at the time of the Student visa application, but instead proceeded to undertake the Certificate IV in Building and Construction, which are addressed further below. The applicant has however completed the Certificate IV in Building and Construction and has proceeded to undertake the Graduate Diploma of Management (Learning), which he will complete in approximately five months. The Tribunal also notes that it has now received additional information, including an updated statement of purpose, which provides further detail of the applicant’s proposed residential development business plans, which were not made available to the delegate or to the Tribunal as previously constituted.

7. As to his circumstances in his home country, the Tribunal accepts the applicant has family ties to his home country which would serve as a significant incentive to return to his home country. These ties include his parents and two sisters.

8. The applicant has not provided any information regarding previous employment in Pakistan. He claims that after he completes his current studies, he intends to return to Pakistan to start a residential building development business with his family. The Tribunal notes that in his most recent statement of purpose the applicant has now provided information as to how he intends to start this business. On 12 October 2021 he also provided evidence of his parents’ ownership of two parcels of land for development, purchased in 2010 and 2021. The Tribunal accepts that the applicant has now provided some evidence of financial ties and incentives to return to his home country.

9. There is no evidence of any civil or political issues that would act as an incentive for the applicant to remain in Australia. There is no evidence of any military service requirements. There is insufficient evidence before the Tribunal regarding the applicant's circumstances in Pakistan, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

10. As to the applicant’s potential circumstances in Australia, the Tribunal notes that the applicant has completed the Diploma of Leadership and Management, which was partly the subject of his Student visa application. Rather than proceeding directly to his enrolment in the Graduate Diploma of Management (Learning), the applicant instead enrolled in the Certificate IV in Building and Construction. The Tribunal considers that the applicant provided only a very general explanation in his s.359(2) response, provided in April 2020, as to why he enrolled in this course, and no explanation of how he intended to initiate or fund such a business. As noted above, the applicant’s most recent statement of purpose now provides further details of his plan, as well as evidence of his family’s ownership of land which will help form the basis for the residential development company he proposes. The Tribunal therefore makes no adverse findings regarding the applicant’s decision to study the Certificate IV in Building and Construction.

11. The applicant has been studying the Graduate Diploma of Management (Learning) since March 2021 and has now approximately five months remaining to complete this course. This will bring his proposed stay in Australia to approximately 8 years and 9 months, which is a significant period of time to remain in Australia on temporary visas. The Tribunal accepts however that the applicant has studied almost continuously during his stay in Australia, with the exception of 2017. The Tribunal notes that while the professional year in Accounting is not a registered course of study, the applicant has nevertheless now provided evidence of his enrolment in Accounting PYP at Education Centre of Australia, which he undertook while holding the 485 visa. This offers some support to his claim that his purpose for remaining in Australia is for education purposes and to obtain skills and experience which may benefit his career in his home country.

12. The applicant has worked in Australia as a customer service representative at 7 Elevens and as a driver. He has not provided sufficient details of his annual salary in these roles, however the Tribunal notes that there is no evidence that the applicant has worked as an accountant or within the building and construction industry in Australia, and therefore nothing to indicate that he has been building a career in Australia. The Tribunal therefore considers that while his employment opportunities in Australia may provide some incentive to remain in Australia, overall there is insufficient information to make an adverse finding with confidence.

13. The Tribunal notes there is no evidence that the applicant has any family in Australia and notes his statement that he has no community ties in Australia. There is no evidence that the applicant has entered into any relationship of concern for a successful Student visa outcome.

14. The Tribunal has considered the evidence of the applicant’s potential circumstances in Australia, including his completion of his intended studies for the Diploma of Leadership and Management and his commencement of the Graduate Diploma of Management (Leadership). The Tribunal notes that the delegate considered the applicant was regressing in his studies by proposing to undertake these courses, which the delegate stated were at the vocational level. The Tribunal notes however that the Graduate Diploma of Management (Learning) is a postgraduate course of study and is at a higher AQF (Australian Qualifications Framework) level than the applicant’s existing Bachelor degree. While the Tribunal accepts that the applicant regressed with his studies at the Diploma and Certificate IV levels, it considers the applicant has made some academic progress by proceeding to studies at the Graduate Diploma level. While the Tribunal holds some concern that the applicant may have intended to extend his stay in Australia by undertaking two short vocational courses at a lower level than his existing qualifications, it must make its findings on the applicant’s current circumstances. The Tribunal considers the applicant is progressing academically by proceeding to studies at the postgraduate level. The Tribunal also notes that the cost of the Graduate Diploma the applicant is enrolled in is $10,000, which is not inexpensive for a course of 12 months duration. The Tribunal therefore does not consider there is sufficient evidence that the applicant is at present enrolled in a relatively short or inexpensive course for the principal purpose of maintaining residence in Australia or circumventing the migration program.

15. The Tribunal notes the applicant has now completed over 60% of the Graduate Diploma of Management (Learning) and provided correspondence from his education provider regarding his course progress. The Tribunal therefore makes no adverse findings regarding the applicant’s knowledge of his education provider or propose course of study.

16. The Tribunal considers there is some evidence that the applicant’s current course of study will be of value to his future. The applicant claims that while he was undertaking an internship as part of the Professional Year Program in Accounting, he became aware that he requires greater leadership and management skills. He claims that he now intends to return to Pakistan to commence a residential building development business with his family. The applicant has outlined some of the skills that he will obtain from the Graduate Diploma of Management (Learning). The Tribunal has some concerns as to what skills and knowledge the applicant will obtain over and above his existing qualifications, which now include the Diploma of Leadership and Management. The Tribunal has some concerns that the skills and knowledge he may obtain may only incrementally improve his employment and business opportunities over and above his existing qualifications. The Tribunal has however noted that the applicant is now studying a qualification at the postgraduate level, and accepts that this represents some academic progress over and his highest existing qualification, which is at the Bachelor degree level. The Tribunal found the applicant’s statements about what he would learn from this course of study and how he would apply it to his proposed business to be somewhat general, although the Tribunal accepts that the applicant has now provided information as to how he intends to commence and fund the proposed business. Accordingly, the Tribunal makes no adverse findings regarding the value of the course to the applicant’s future on this occasion.

17. There is no evidence that the applicant has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation. The Tribunal notes that the applicant applied for the Student visa under review on 24 January 2019, over five weeks before his 485 visa was due to end on 3 March 2019. The delegate considered that the timing of the lodgement of the Student visa application was indicative of a person wishing to extend their stay in Australia. The Tribunal notes however that the applicant has also now provided evidence that his Professional Year Program in Accounting concluded on 21 January 2019, three days prior to his Student visa application, and approximately one week before his enrolment in the Diploma of Leadership and Management commenced. The Tribunal accepts that the applicant has been enrolled in courses of study, including the Professional Year Program in Accounting, almost continuously since arriving in Australia, with the exception of no studies during 2017. The Tribunal is on this occasion willing to give the applicant the benefit of the doubt, and accepts that the timing of his enrolments in the Diploma of Leadership and Management and the Graduate Diploma of Management (Learning) coincided with the ending of his Professional Year Program, and that he applied for the Student visa for the purpose of obtaining the qualifications which he believes will benefit his business plans, rather than primarily to maintain his stay in Australia.

18. Since arriving in Australia the applicant has completed all of the courses of study which he has enrolled in, other than the current course of study, which as at early October 2021 he had completed 63% of the course. The applicant requires a further five months to complete the Graduate Diploma of Management (Leadership), which the Tribunal notes is at AQF Level 8, as opposed to his existing highest qualification at AQF Level 7 (Bachelor degree). The Tribunal is therefore satisfied the applicant is making academic progress with his current enrolment.

19. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

20. Having considered the particular circumstances of the applicant in accordance with the relevant criteria in Direction 69, the Tribunal accepts the applicant’s reasons for now wishing to complete a postgraduate qualification in Management in Australia, and accepts that his studies are at a higher AQF Level than his previous qualifications. Given the progress the applicant has now made and the proposed completion of his course in March 2022, the Tribunal considers the applicant should be given the opportunity to complete this course of study. The Tribunal also notes that it has had the benefit of a more detailed statement of purpose provided by the applicant, which provides evidence of his family’s property ownership in Pakistan, as well as details of how he intends to initiate his proposed business plans in Pakistan, details of which were not made available to the delegate or the Tribunal as previously constituted. In particular, the Tribunal notes that the applicant did not provide a statement of purpose to the Department. Certain aspects of the applicant’s circumstances remain of some concern, including the length of time the applicant has now remained in Australia. On balance however, the Tribunal is satisfied that after assessing the applicant’s circumstances as a whole, at present he satisfies the genuine temporary entrant criterion. Should the applicant choose to enrol in further vocational studies in unrelated fields for the purpose of obtaining a yet another Student visa, this may once again raise concerns as to his intentions to remain in Australia only temporarily.

21. 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?

22. 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.

23. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider). The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

24. The applicant has provided with his visa application, as well as in his statement of purpose, an undertaking to comply with any conditions the subject of which the visa is granted. There is no evidence to demonstrate that this would not be the case, and based on the applicant’s stay in Australia to date, including his evidence of compliance with current visa conditions, 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).

25. 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?

26. 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)).

27. There is no evidence before the Tribunal of any other relevant matter that gives rise to a concern by the Tribunal that the applicant is not a genuine applicant for entry and stay as a student.

28. 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.

29. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

30. 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.

    Frank Russo
    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;

    d.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

    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.