Farooq (Migration)

Farooq (Migration) [2022] AATA 4272 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zulqarnain Farooq
CASE NUMBER:  2115310
HOME AFFAIRS REFERENCE(S):          BCC2021/1320743
MEMBER:Peter Booth
DATE:7 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 07 October 2022 at 11:24am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant was not a genuine applicant for entry and stay as a student –use the student migration program to maintain ongoing residence – applicant has been resident in Australia for an extended period of time– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 28 June 2021. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl .500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
The applicant appeared before the Tribunal on 22 April 2022 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. 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 entrant.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, 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.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The applicant gave evidence at the hearing, the substance of which was follows.
The applicant had read the delegate’s decision dated 11 October 2021 refusing his application for a student visa.
The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said, “enrolled in certificate III light vehicle mechanical technology start 24 May 2021 ending 22 May 2022, second course certificate for automotive mechanical diagnosis start 23 May 2022 and finish 21 May 2023”.
The applicant had produced a confirmation of enrolment documents to the Tribunal in respect of such courses. The Tribunal accepts that he is enrolled in the courses described in the confirmations of enrolment.
The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2).
In summary the information provided by the applicant was as follows.
The applicant completed “higher secondary certificate” prior to arriving in Australia between November 2007 and May 2009. He stated that he was employed in “customer service assistance” prior to arriving in Australia between March 2010 and August 2010 and in “customer service” between February 2011 and November 2014. He stated his annual salary from the latter position to be AU$13,000.
The applicant arrived in Australia on 3 December 2015 and since that time had returned to Pakistan on five occasions most recently in February 2020 for 31 days.
The application for the student visa in question was made in June 2021. The applicant stated his visa history in Australia to be as follows: he held a “student (subclass TU 500)” visa between November 2015 and September 2016, another “student (subclass TU 500)” visa between March 2017 and November 2017, a “temporary graduate” visa between November 2017 and November 2019 and a “student (subclass 500)” visa between February 2020 and September 2021.
The applicant stated his study history in Australia to be as follows: he was “studying now” a Certificate III in Light Vehicle Mechanical Technology which commenced in May 2021 is due to be completed in May 2022 and had a “future enrolment” in a certificate IV in automotive mechanical diagnosis which commenced in May 2022 and is scheduled to be completed in May 2023.
The applicant stated that he was employed as a “cleaner/casual” as a “sole trader” between March 2016 and December 2017 from which he derived an annual salary of AU$21,000.
The applicant stated that his wife resides in Australia and that his father, mother, two brothers and three sisters reside in Pakistan.
The applicant stated that he owned assets in Pakistan comprising two parcels of “residential land”.
As to his future employment plans the applicant stated, “My future planning is to complete my Certificate III and Certificate IV in light vehicle mechanical technology and return back to my country with knowledge and practical experience. After getting my Certificate III and IV in light vehicle mechanical technology here in Australia, there will be alot of opportunities waiting for me. I want to start my own auto mechanic workshop in my city back home. People still use old traditional ways of fixing the vehicles in my country, most fault finding is guess based or changing the whole module rather than fixing the required part. Most of the mechanics fix the car by guessing the problem. I am learning about new technology and diagnostic techniques which would definitely prove me more efficient in my field. Just because there are no valuable institutions teaching vehicle mechanical technology, it is very time-consuming to fix a vehicle in my country. Using correct diagnostic techniques and work efficiency makes things much easier. I am pleased that I am learning new techniques and new instruments, how to perform the tasks with right tools for the right job.I start realising when i will open a workshop with proper tools , hoist and scanner tool for diagnostic the faults it will be unique and mind changer for the society. Moreover, it has more safety and more friendly to environment. Australia is an advanced country and has the latest model cars. I am getting a very good practical experience on the old and new models of cars.”
As to his expected future remuneration the applicant stated, “As I am thinking to start my own business of an auto repair workshop my expectations are very realistic. I am thinking of a high turnover. One of the reasons is that unlikely we find a workshops that provide a valuable standard of work and the other reason is that the average rates for labor costs are also quite low. The automotive industry of Pakistan is the fastest growing industry nowadays, whereas only a few mechanics can fix the latest model cars.I have personal experience to service my uncle Toyota Prado mechanical service from Toyota workshop and service cost me almost more than 2000 AUD which is even sometime most expensive than Australia, if the fault still exist than you have to pay again for the new service, which is quite disturbing for the vehicle owner.”
The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.
The applicant confirmed that he arrived in Australia on 3 December 2015. When asked what visa he held at the time he said, “student dependent, temporary subclass 500”. He was asked who the primary visa holder was at that time. He replied, “my wife”.
The Tribunal observed that in information he had provided he stated that the first student visa expired in 2016. The applicant agreed. When asked whether the primary visa holder was his wife he said “yes”.
The Tribunal observed that another student visa was granted between March 2017 and November 2017 and asked whether this was held by his wife also. The applicant said “yes”.
The Tribunal observed the applicant’s wife was then granted a temporary graduate visa valid until November 2019. The applicant agreed. He was asked when this visa expired. He said “November 2019”. When invited to give the precise date he said, “don’t have exact, but was in November 2019”.
The Tribunal observed that there was another student visa granted which was valid between February 2020 in September 2021. The applicant said, “temporary graduate visa are not finished, when started master in 2019, she decided to start”.
The Tribunal asked who the primary visa holder in respect of the third student visa was. The applicant said, “she was the primary applicant”.
The Tribunal observed that the applicant applied for a student visa in his own name on 28 June 2021. The applicant agreed. He was asked whether he had studied in Australia since 3 December 2015. He said “no”. The Tribunal asked him why he did not apply for a student visa prior to June 2021. He said, “I wanted to study but when came here wife already study, I cannot study more than three months because visa limitation”. The Tribunal asked the applicant why he did not apply for his own student visa during that approximately six year period. He said, “I wanted to start as soon as she was finished and graduated, two people in student visa not ideal, I had in mind I have three-month limit, then I would start”. When the question was repeated, he said “I was going to apply when she finished graduation, I came 2015, 2017 planning to apply for student visa, but I had car accident, I have provided the documents, it took me another two years, I had a problem in my back and some mental illness”. He was asked when the car accident occurred. He said “2017, December”. The Tribunal asked why he did not apply for a student visa prior to that date. He said, “because my wife was studying, I was on dependent visa, I was planning to apply, when she finished graduation”. He was asked why he was waiting until that occurred. He said, “she was study, she was made applicant, I was the dependent”. The Tribunal observed that the applicant could have applied for his own visa at any time prior to 2021 and asked him why he did not do so. He said, “I was just waiting for her to finish study, and I wanted to apply, at least one person at the time can study”.
When asked what courses his wife had completed, he said “finished graduation, then did bachelor of accounting in two years, and first two years, then she was granted temporary graduate visa, then she applied for masters”. He was asked whether his wife completed the master’s degree. He said “yes”. He was asked to state the nature of the master’s degree. He said, “Master of Business Administration”.
The Tribunal asked the applicant what course he intended studying when he applied for the student visa. He said “automotive, certificate three”. He was asked when that course commenced. He said, “24 May 2021”.
He was asked whether he expected to complete the course in May 2022. He said “yes, almost finishing, due to covid we had some classes online, almost finishing”.
The Tribunal asked the applicant whether he was currently employed. He said “no, sole trader, I am looking for a job in my field, I have talked to a company near to my home, just two weeks ago”. He was invited to state what he meant by “my field”. He said “automotive, an internship”.
The Tribunal asked the applicant why he and his wife had not returned to Pakistan when his wife had concluded her studies. The applicant said, “this study?”. The Tribunal asked the applicant why he and his wife did not return to Pakistan when his wife had completed her first qualification. He said, “that is the plan we wanted to go back, once one side finished, I want to start my own business”. When the question was repeated, he said “when she finished first qualification then I had accident and I was taking medical, for two years I was mentally disturbed and had physical issues”. The question was repeated again. This time the applicant said, “we were granted temporary graduate visa to stay here two more years”.
The Tribunal asked the applicant why he and his wife did not return to Pakistan when his wife had completed the temporary graduate visa period. The applicant said, “I wanted to do a business back home in Pakistan, so me and wife, we had a plan, so I can take some education from here in Australia, and then we will go back, so that is the basically plan”.
The applicant was asked why he and his wife did not return to Pakistan when his wife had completed her third student visa. The applicant said, “third student visa still on when I apply for automotive mechanical visa, because she was qualified and I was not, I wanted to get more qualification from here and then we would go back”.
He was asked whether he owned any assets in Pakistan. He said “yes”. The applicant was asked to confirm that the property was in his name and not in someone else’s name. He said, “in my name”.
The applicant was invited to state his employment intentions when he returns to Pakistan. He said, “I want to go back and start my own business, in my automotive skills which I’m getting from here, I want to start my own workshop there”. He was asked why he did not undertake such studies in Pakistan. He said, “no automotive qualification in Pakistan, there are some universities they teach only basically not automotive mechanical courses, and they don’t have that much higher level which we get here, practical knowledge I am getting”.
The Tribunal observed that the applicant had provided a series of medical certificates and invited him to explain the relevance. He said, “in a refusal they refuse visa asked me why I did not study, I had an accident, my wife basically first finish her graduation, I was on medication”. He was asked when the accident occurred. He said “2017 December I was in town accident”. When invited to state his injuries he said, “injured with spine injury, disc bulge, and some issues on neck area as well”. He was asked how long those issues persisted for. He said, “it took almost 2 years to recover from that thing, and also I will to serious mentally depression and stuff which I have also attached the report”.
The Tribunal observed that the applicant had given evidence that the plan devised by he and his wife was that he wait until his wife had finished her study before he commenced studying. The applicant agreed. The Tribunal observed that the applicant’s wife did not complete her studies until late 2021. The applicant agreed. He was asked to explain the relevance of a car accident and two years of recovery between late 2017 and late 2019. He said, “my wife finished first in bachelor, I was planning at that time, I was planning in beginning of 2018 to do studies here but I had accident, unfortunate thing happened to me, and I could not study at that time, so she was looking after me, all this.”. The Tribunal asked the applicant whether he had worked during that period. He said “no”. He was asked how he paid the bills if his life was a full-time student and he did not work. He said, “I was on a claim, CTP, they were paying my living, I was not at fault”.
The applicant was asked whether he had any medical opinion evidence to corroborate his assertion that he was not able to study during the period 2017 until 2019. He said, “no but I have attached psychological report”. It transpired that the document he was referring to was a referral letter from his general practitioner dated 27 April 2018 to another practitioner, Dr Bisht”. He was asked whether he had attended Dr Bisht. He said “yes”. When asked to explain his area of medical practice. He said, “he gave me medicine”. When the question was repeated, he said “is basically a psychiatrist”. The applicant was asked whether he had a report from Dr Bisht. He said “no”.
The Tribunal observed that the applicant had stated that he intended to start study in 2018 but that the car accident made it more difficult. The applicant agreed. He was asked whether he had applied to be enrolled in courses of study prior to the accident. He said “no”. He was asked when his wife had finished her course of study and graduated. He said “November 2017.” The Tribunal observed that the applicant’s plan was to study thereafter. The applicant said “yes”. He was asked whether he had applied to be enrolled in a course of study prior to the accident. He said “no, it was me and wife decision”. The Tribunal asked the applicant why he had not applied to be enrolled in a course of study prior to the accident. He said, “I was still in her visa”. He was asked when that visa expired. He said “2017, November”. The Tribunal observed that his response did not make sense, if it was his plan to study once his wife and graduated. The applicant said “she graduated in November visa expired in November”. The Tribunal asked again why he had not applied to be enrolled in courses of study prior to the accident. He said, “we had discussion, I was planned, wife finish I will carry on study and I will go back home”.
The applicant was asked whether his wife was still in Australia. He said, “no she is a holidays”. When invited to explain he said, “she went last month, she will come back next month”.

He was asked whether his wife was employed in Australia. He said “no”. The Tribunal asked the applicant how he was paying the bills. He said, “I am working”. The Tribunal observed that when the applicant had been asked the same question earlier in the hearing, he had stated that he was not working, that he was self-employed, and looking for a job in his field. He was invited to explain. He said, “I am doing rideshare at the moment, still self-employed, rideshare”. It was asked to state his income. He said, “not guaranteed, depends, 800 or 900, about 1000”. In answer to a further question, he said that the amounts were on a weekly basis. He also added “I’ve applied for internship”.
The applicant was asked whether he and his wife had applied for permanent residence in Australia. He said, “not yet”. He was then asked whether he and his wife intended to apply for permanent residence. He said, “I want to go back”. The Tribunal observed that he had not answered the question directly. He said, “I don’t want to apply for permanent residence”. He was asked to state his wife’s intentions in that regard. He said, “my wife she neither want to apply for permanent residence”.
When invited to add anything further to his evidence the applicant said, “finished half my study my request is to be allowed another year and then I will definitely go back”.
Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. A series of medical documents were provided as follows: a letter dated 2 September 2018 from a medical practitioner referring to the applicant to another medical practitioner for an opinion regarding “back pain”. A letter dated 27 April 2018 referring the applicant to Dr Bisht for opinion. The letter states the applicant has “had 8 sessions of physiotherapy, depression worsening”. An undated letter from radiology clinic, is in technical terms and is given little weight. Copies of x-ray images dated 19 March 2018. In the absence of expert explanation, they are meaningless to the Tribunal and given no weight. eports of an examination which took place on 11 December 2017. This may well be a record of a post accident examination. The Tribunal notes the applicant was “discharged on simple analgesia”. A receipt for payment to a “spinal surgeon” is dated 3 October 2018. These are the documents upon which the applicant relies to support his assertion that he had back injuries as a result of a car accident in December 2017, suffered ongoing injuries, suffered depression, and was unable to study for at least two years. The Tribunal accepts that the applicant was involved in a car accident in December 2017 and thereafter he received compensation payments. The Tribunal also accepts that he consulted a general practitioner and, in turn, was referred to other medical practitioners for investigation. To the extent that the results of the investigations have been produced they are, as described above, in technical form and unintelligible to the Tribunal without further explanation. They are given no weight. Dr Bisht was described by the applicant as a psychiatrist. The Tribunal infers that he was referred to this person for the purpose of investigating alleged mental illness. However, in the absence of any opinion evidence from Dr Bisht the Tribunal places little weight upon the applicant’s assertions. Further, the Tribunal notes that none of this material supports the assertion that the applicant was unable to study between late 2017 and 2019. Accordingly, his assertions are given little weight. Two documents each titled “sale deed of plot” and each dated 2 March 2022 (as to the translated version) appear to record a sale of land in favour of the applicant. Each document appears identical to the other. The applicant did state in the hearing that he owned real property in Pakistan and information provided to the tribunal prior to the hearing stated that he owned two parcels of land. The Tribunal accepts that he owns real property in Pakistan.
Prior to the hearing the applicant provided two statements in support of his application for review. Neither statement was referred to by the applicant during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to each statement. The first statement is dated 8 March 2022, it is unsigned and without page and paragraph numbers. The applicant states that he wants to stay in Australia temporarily and return to Pakistan after completing his studies. Further he states that his previous visa only allowed him to undertake three months study. The statement is otherwise consistent with the applicant’s evidence of the hearing. However, it does not explain to the Tribunal’s satisfaction why he did not study prior to his student visa application and why did not study between 2017 and 2019 at least. The second document is titled “statement of genuine temporary entrant (GTE)”. It is undated, unsigned and has no page and paragraph numbers. The applicant states that he intends to “start my own or automotive mechanical workshop in my city back home”. The statement does not otherwise advance the applicant’s case to the Tribunal’s satisfaction insofar as his failure to study prior to his student visa application and his failure to study between 2017 and 2019 at least are concerned. Insofar as he relies upon a visa condition which did not enable him to study prior to his student visa application, the Tribunal notes that it was open to the applicant at any time prior to arriving in Australia or thereafter to apply for a student visa in his own name. He did not do so until 28 June 2021. His explanations for not doing so at an earlier time are most unconvincing.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
Without diminishing the applicant’s evidence, it can be summarised as follows.
The applicant completed “higher secondary certificate” in Pakistan in May 2009. He was employed in Pakistan in customer service between 2010 and November 2014.
He arrived in Australia on 3 December 2015 and has returned to Pakistan on five occasions.
The application for the student visa in question was made on 28 June 2021.
The applicant stated his visa history to be as follows: he held a “student (subclass TU 500)” visa between November 2015 and September 2016, another “student (subclass TU 500)” visa between March 2017 and November 2017, a “temporary graduate” visa between November 2017 and November 2019 and a “student (subclass 500)” visa between February 2020 in September 2021. However, as matters transpired during the hearing, he did not hold these visas as the primary visa holder. At all material times the applicant’s wife was the primary visa holder and he was dependent upon her visa status. The first student visa which he applied for in his own name was made on 28 June 2021, approximately five and half years after arriving in Australia.
The applicant did not study in Australia from 3 December 2015 until he applied for the student visa in question on 28 June 2021.
At the time of hearing the applicant had nearly completed a Certificate III and Light Vehicle Mechanical Technology and was about to start a Certificate IV in Automotive Diagnosis. He has not provided proof of completion of the Certificate III course. The Certificate IV course is due to be completed in May 2023.
The applicant’s wife resides with him in Australia although at the time of the hearing she was “on holiday” presumably outside Australia.
The applicant’s immediate family reside in Pakistan. He owns real property in Pakistan.
The applicant is employed in Australia.
The applicant stated that he and his wife agreed that she would study first and then he would study thereafter. The applicant asserted that his visa condition prevented him from study for more than three months duration. The Tribunal considers that the applicant could have applied for a student visa at any time after he arrived in Australia and prior to June 2021. Accordingly, the applicant’s assertion that he was prevented from studying prior to June 2021 is most unconvincing. The applicant’s wife graduated from her first course of study in November 2017. The applicant stated that he intended to start studying in early 2018. However, he had not applied for any enrolment in acourse of study as at mid-December 2017. Accordingly, his assertion is inconsistent with the conduct of the person who is anxious to commence study. This is given some weight. The applicant was involved in a car accident in mid-December 2017. He suffered some back and neck injuries. However, it seems that he was discharged shortly after the accident with only simple analgesics being provided . There after the applicant alleges that he had ongoing issues namely back issues and some mental health issues. It also appears that he was receiving compensation for some extended period of time as a result of the car accident. The Tribunal accepts that the applicant was involved in a motor vehicle accident in December 2017, had some ongoing back and neck issues and consulted a psychiatrist. However as discussed above, the Tribunal is not satisfied these matters prevented him from studying during the period 2017 until 2019 and nor do they explain his failure to apply for a student visa until June 2021. The conduct of the applicant in not studying prior to the car accident, not applying for enrolment in a course of study prior to his wife’s completion of study or shortly thereafter and not applying for a student visa until June 2021 are inconsistent with the behaviour of the person who is anxious to engage in study and then return to his home country. Rather this conduct is consistent with the conduct of the person who is rather more anxious to remain in Australia by any means possible. These matters are given some weight.
The applicant has not explained to the Tribunal’s satisfaction why he did not study when he arrived in Australia, where he did not apply to be enrolled in a course of study prior to his wife’s graduation or shortly thereafter, and why he did not apply for a student visa until June 2021.
In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.
The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from Pakistan. The applicant has provided evidence of social, direct family and financial ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Pakistan, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Pakistan.
The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 3 December 2015 as a holder of visa which was dependent upon the visa held by his wife at that time. The proposed study would extend the applicant’s stay until at least May 2023. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend her stay in Australia by utilising the student visa programme.
The Tribunal does place some weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. However, the Tribunal notes that the applicant has given vague evidence about his career path and provided no details of his largely aspirational plans.
The Tribunal has considered the applicant’s study history since arrival and notes that he commenced study in approximately June 2021 having been in Australia for approximately 5 and a half years and not studied.
The Tribunal observes that the applicant’s current study plan is inconsistent with the applicant’s employment history in Pakistan and is inconsistent with his plans when he entered Australia.
On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the largely aspirational nature of the applicant’s career plan. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualification.
The Tribunal turns to consider whether there are any other relevant matters. As discussed above the applicant stated that he and his wife devised a plan pursuant to which she would study in Australia and then at some point when it was convenient that he would commence study. This is not the conduct of a person or persons who are genuine temporary entrant to Australia for the purposes of study. It is consistent with the behaviour of a person or persons who are intent on remaining in Australia for as long as possible by any available legal means. This is given weight by the Tribunal.
The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between Pakistan and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Pakistan. The applicant has been unable to demonstrate substantial ties or personal assets in her home country which diminishes his incentive to return to Pakistan.
The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to her future.
The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 3 December 2015 the applicant has spent nearly 7 years in Australia and has returned to Pakistan on five occasions, is employed in Australia, his wife has obtained two higher education degrees and two years of work experience in Australia, the applicant’s wife intends to reside with him in Australia in the future, and he intends to reside in Australia if permitted for the purposes of study until at least May 2023 all of which indicates that he does not appear to have strong personal ties to Pakistan. On balance, the Tribunal assesses the applicant’s incentive to return to Pakistan to be poor.
The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant could have applied for a student visa at any time whilst he was residing in Australia, or indeed before he came to Australia in 2015, but chose not to do so until June 2021. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
The Tribunal has considered all information provided by the applicant in support of her application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to her future, her immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in Pakistan; political or civil unrest circumstances in Pakistan; remuneration the applicant could expect to receive in Pakistan or a third country compared with Australia; circumstances in Pakistan relative to Australia or any other country; and the applicant’s circumstances in Pakistan relative to others in that country.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
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.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
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.

[2022] AATA 4272

7 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction