HAQUE (Migration)

[2019] AATA 6873

HAQUE (Migration) [2019] AATA 6873 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ehtesham Ul HAQUE
Mrs Rabia EHTESHAM
Master Musa EHTESHAM

CASE NUMBER:  1802864

HOME AFFAIRS REFERENCE(S):          BCC2017/3917039

MEMBER:Vanessa Plain

DATE:17 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 17 December 2019 at 12:58pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant – financial ties is not outweighed by the economic ties – value of proposed course – maintain ongoing residence in Australia – no significant incentive to return.– decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.212

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 18 January 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 October 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicants appeared before the Tribunal on 16 December 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 for entry and stay as a student in Australia.

8. 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.

9. Clause 500.311 requires as follows:

   The applicant is a member of a family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

   (a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person and was included in:

   (i)the primary person’s applications under subregulation 2.07AF(3); or

   (ii)information provided in relation to the primary person’s application under subregulation 2.07AF(4); or

   (b)the applicant became a family member of the family unit of the primary person:

   (i)after the grant of the student visa to the primary person; and

   (ii)before the application was made.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. The applicant in this case is a Pakistani male who first arrived in Australia on 12 February 2012.  The applicant has previously been granted two student visas between 2012 and 2014 respectively.  On 24 October 2017, the applicant applied for a further (third) student visa which is the subject of this application for review and for a proposed course of study which is scheduled to conclude in July 2020, thereby extending the applicant’s total stay in Australia to more than 8 years.   

13. Before arriving in Australia, the applicant completed high school in Pakistan.     

14. Since arriving in Australia in 2012, the applicant has returned home to Pakistan for approximately 150 days over 4 separate visits, the last one being in 2015 for the purpose of getting married.

15. Further since arriving in Australia, the applicant has undertaken and completed the following studies:

    ·General English Program from 21 May 2012 to 15 July 2012

    ·Diploma of Business from 16 July 2012 to 12 July 2013

    ·Advanced Diploma of Business from 9 September 2013 to 9 September 2014

    ·An Advanced Diploma of Accounting from 9 February 2015 to 14 April 2017

16. The applicant enrolled in but did not start a Bachelor of Accounting At Group College Australia Pty Ltd, he contended that he thought he would not do well in some subjects and on the advice of a consultant, enrolled in the Advanced Diploma of Accounting instead, for the purpose of obtaining some exemptions for subjects in the Bachelor of Accounting, which he could commence after doing the Diploma of Accounting.

17. The applicant is currently enrolled in a Bachelor of Accounting at Australian Institute of Higher Education which is scheduled to conclude in July 2020. 

18. The applicant did not provide a GTE statement in support of his review application.   The applicant has provided to the Tribunal a response to a request to provide information (Response), various academic documents a statutory declaration from his brother in Australia.   The Tribunal has considered the contents of all documents provided, together with the applicant’s oral evidence. 

19. The Tribunal has had regard to the applicant’s circumstances in Pakistan, based on his evidence at the hearing, as follows:

    ·As to the reason for not studying in his home country, the applicant asserts that Australia is significantly better than Pakistan in terms of the content and structure of the course and mode of delivery;

    ·The applicant wishes to return home to Pakistan after completion of his studies;

    ·As to the applicant’s personal ties to Pakistan, his mother, father and two siblings live in Pakistan.  Another brother lives in Australia, with whom the applicant lives; 

    ·The applicant is married and has two children.  His children are two years of age and 6 months of age respectively.  The applicant’s wife and children live with him in Australia and his wife and the eldest child are dependant applicants in his student visa application; 

    ·The applicant has an interest together with his family in Pakistan in property situated in that country;

    ·The applicant has returned home to Pakistan four times since being onshore from 2012, primarily to visit family and to get married; and

    ·The applicant is currently working for a construction business, Safari Homes, approximately 20 hours per week and for $22.00 per hour.  He had been doing so for the last two years. 

20. The Tribunal is unable to accept the applicant’s reasons for not studying in Pakistan as sound as he has not demonstrated an objective level of investigation into the availability of his chosen course in Pakistan. 

21. Further, although the Tribunal acknowledges the applicant’s parents are in Pakistan, the Tribunal finds that given the applicant’s wife, children and brother reside in Australia, he does not have significant enough familial ties to his home country which would serve as an incentive for him to return there after his studies are completed.

22. The Tribunal acknowledges that the applicant has demonstrated a financial investment in property in Pakistan, however, the Tribunal finds that this financial tie to Pakistan is not outweighed by the economic ties the applicant currently has in Australia, in the form of steady and continuous paid employment.  These aforementioned matters provide an incentive to the applicant to remain in Australia on a more permanent basis.

23. The Tribunal has also regard to the fact that the applicant has been in Australia since 2012 and undertaken a significant number of courses which do not appear to be related to his current field of employment in construction.  The Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist his career development or earning potential in view of the qualifications he already holds. 

24. Therefore, the Tribunal does not consider, on balance, that there are significant enough incentives for the applicant to return to Pakistan after the conclusion of his studies.

25. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on her evidence at the hearing, as follows: 

    ·The applicant’s spouse is included in the applicant’s visa application as a dependant person and the applicants two children live with him in Australia.  They all reside with the applicant’s brother, who also lives in Australia;

    ·He socialises with people from his own community in Australia and plays cricket with friends in his leisure time;

    ·The applicant has been enrolled in multiple courses since 2012, all of which are similar in content to one another;

    ·The applicant has maintained steady employment in Australia in the construction industry and at a 7 Eleven store, since being onshore; and

    ·He became familiar with his current course provider by internet research and making enquires of an education agent.

26. Based on the above, the Tribunal is unable to conclude that the applicant has undertaken any significant research into his proposed course, course contents or educational objectives.  Due to the volume of courses the applicant has undertaken over several years as set out above, together with his continual paid employment since being onshore, the Tribunal is of the view that the applicant is enrolling in a series of courses with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.   

27. The Tribunal places significant weight on the applicant’s ties to the Australian community in the form of his immediate family residing with him in Australia and the network of friends he has clearly established. The fact that the applicant’s wife is in Australia with him, together with his children, are factors which serve as a significant incentive not to return to Pakistan.  This leads to the conclusion that the applicant’s desire to study in Australia is secondary to his intention to remain in Australia on a more permanent basis. 

28. Further, while the Tribunal acknowledges that the applicant’s courses are not inconsistent in nature, the Tribunal finds that the volume of courses the applicant has studied and completed to date, have sufficiently equipped him to return to Pakistan and seek employment in his chosen field.  The Tribunal is of the view that the applicant has not objectively demonstrated how undertaking further study, in view of the qualifications he holds, will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.  

29. The Tribunal has had regard to the value of the courses of study to the applicant’s future.  In his evidence, the applicant makes the following claim:

    ·He intends to return to Pakistan to work as an accountant;

    ·He does not have a current offer of employment but is confident there are great opportunities for those who have completed their studies in Western countries;

    ·He anticipates that a starting salary in Pakistan for a graduate accountant to be in the vicinity of 200,000 rupees, or $22,000.00

30. The Tribunal is unable to accept the applicant’s assertion as to the value of the course to his future.  The applicant has conceded that he does not have any job offers from businesses in Pakistan. 

31. Further, given the extent of the applicant’s study history, the applicant has not objectively demonstrated that the completion of the nominated course of study will improve his remuneration prospects in his home country to an extent that is outweighed by the current cost of completing the course.  On that basis, the Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future.  

32. The Tribunal further notes that the applicant’s assertion as to what a graduate accountant can expect to be paid by way of starting salary on a full time annual basis, is approximately the same amount of money that the applicant is currently being paid in Australia for work on a part time basis. Given that the applicant has two young children to support and no offer of employment in his home country, this provides significant incentive to stay in Australia on a more permanent basis. 

33. The Tribunal has had regard to the applicant’s immigration history.  The applicant stated that he has returned home four times since being in Australia from 2012 onwards.  He further contends that he has not had visa refusals or cancellations previously.   

34. The applicant’s visa history and study history indicate that the applicant has spent over 7 years in Australia, during which time he has maintained steady employment in Australia, rarely visited his home country, married and brought his wife to Australia, had two children in Australia and completed numerous courses.  The Tribunal does not find this behaviour on the whole, to be consistent with that of a genuine student who intends to remain in Australia temporarily.  Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.    

35. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

    ·Political or civil unrest in Pakistan

    ·Military service commitments in Pakistan

    ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

36. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.   

37. Although the applicant provided information to the Tribunal demonstrating that he has successfully completed most of his studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

38. 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).

39. 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.

40. As the primary applicant is found not to meet clause 500.212(a), the dependant applicants, Mrs Rabia EHTESHAM and Master Musa EHTESHAM, do not satisfy cl 500.311. Accordingly, no further enquiry is required with regards to the dependant applicants.

41. 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

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

    Vanessa Plain
    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;

    dwhether 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.