Hassan (Migration)

[2020] AATA 3714

Hassan (Migration) [2020] AATA 3714 (28 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saad Hassan

CASE NUMBER:  1905473

HOME AFFAIRS REFERENCE(S):          BCC2018/3378381

MEMBER:Vanessa Plain

DATE:28 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 June 2020 at 2:45pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in various courses – current course regression from previous educational level – no clear career progression – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 499

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

2. The applicant applied for the visa on 6 September 2018. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 22 June 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 in Australia as a student.

7. 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?

8. 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.

9. 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.

   Evidence in support of application

10. The applicant submitted the following documents in support of his application, as follows:

    ·    COE for an Advanced Diploma of Hospitality Management

    ·    A Response to Request for Student Visa Information (s.359(2) of the Act)

11. The Tribunal has considered these documents, the material before the delegate, the decision record and the applicant’s oral evidence at hearing. 

    Entry and Visa History

12. The applicant in this case is a Pakistani male who first arrived in Australia on 19 September 2016 on an initial Student (Class TU subclass 573) visa. 

13. The student visa the subject of this application was lodged on 6 September 2018 and is the applicant’s second student visa, which was lodged onshore.         

    Current Status

14. The applicant is currently enrolled in an Advanced Diploma of Hospitality Management which is scheduled to conclude in March 2021, thereby extending the applicant’s time in Australia to approximately 6 years.     

    Previous Study and Work History before entering Australia

15. The applicant obtained a Bachelor of Business Administration and a Diploma of Commerce.  He worked as a field manager at Danyal Medicose.    

    Study History in Australia

16. Since arriving in Australia, the applicant has been enrolled in the following courses:

    ·A Masters of Business Administration which he did not complete;

    ·A Masters in Professional Accounting which he did not complete; and

    ·An Advanced Diploma of Hospitality Management which the applicant is studying presently and which he commenced in August 2019 and is scheduled to conclude in March 2021.

    Applicant’s circumstances in their home country  

17. The Tribunal has had regard to the applicant’s circumstances in Pakistan, as follows:

    Reasons for not studying in home country

    ·The applicant stated that as far as he is aware there are no specific studies for hospitality and management in his home country. 

    Personal ties to home country

    ·As to the applicant’s personal ties to Pakistan, the applicant’s parents, siblings and wife reside in his home country, he maintains contact with them visa internet and phone calls.

    ·He is involved with Pakistan’s ruling political party.

    ·The applicant contended that he has land in Pakistan valued at $50,000.  He has a car in Australia valued at $3,000. 

    ·The applicant has returned home to visits his family 3 times since arriving onshore in 2016.  He has travelled once to the UAE since being in Australia.

    Economic circumstances in Australia as incentive not to return home

    ·The applicant is working as an Uber driver and has been doing so since April 2017, for which he earns approximately $20,000 per annum.   

    Military service or civil/political unrest concerns in home country

    ·The applicant has no such concerns.

18. The Tribunal is unable to accept the applicant’s reasons for not studying in Pakistan, due to the fact that the applicant has failed to demonstrate that he has undertaken any significant research into the availability of the course in his home country.

19. Although the Tribunal finds that the applicant’s family ties to Pakistan are significant, the Tribunal is of the view that these ties in and of themselves do not present as a significant incentive for him to return to Pakistan, when considered against his potential economic circumstances in Australia, in the form of his employment as an uber driver.   

20. The Tribunal in unable to conclude whether the applicant’s financial ties to Pakistan present as an incentive for him to return home, as he has not provided any objective evidence of the existence of his alleged land holdings. 

21. The Tribunal finds that the applicant’s strong working history over a reasonable period of time when considered against his failure to demonstrate that he has progressed academically since arriving onshore in 2016, is indicative of a person who is motivated to remain in Australia for economic reasons, rather than out of a genuine desire to temporarily reside in Australia as a student.  

22. The Tribunal places significant weight on the fact that the applicant has been in Australia since mid 2016 and has failed to progress academically in his higher level courses and now proposes to regress academically, by undertaking a course which is inconsistent with his previous qualifications, as being behaviour that is inconsistent with that of a genuine student.  The Tribunal informed the applicant that his study history may be the reason or part of the reason for affirming the delegate’s decision and invited the applicant to comment or respond. 

23. The applicant stated that the subjects in Australia were difficult, he passed the first semester but struggled with management subject, the course provider gave him a release letter and he went to Holmes Institute to do the accounting instead, but then he had problems with his mother at home as she was unwell, he is the eldest son so he went home, discussed his study with his parents and they told him to bring back a degree because time and money have been invested.  He started the Advanced Diploma of Hospitality Management at Sunshine, then the course was suspended so he transferred to Acumen.  He has done 20 out of 30 units and the course will help him when he works in his father’s hospitality business.  The course is not offered in his home country and is not taken seriously.  His father’s business is called Hassan Food Valley, it is a restaurant.    

24. While the Tribunal accepts that individuals may choose different areas of study on the basis of a change of decision as to career course, the Tribunal cannot be satisfied that the current course in which the applicant is enrolled will further assist her career development or earning potential in view of the qualifications he already holds and the work experience as an uber driver that he already has.      

25. Taking in account all the aforementioned matters, the Tribunal finds that the applicant’s circumstances in his home country do not provide a significant incentive for him to return there at the conclusion of his studies.

    Applicant’s potential circumstances in Australia  

26. The Tribunal has had regard to the applicant’s potential circumstances in Australia, as follows: 

    Applicant’s ties with Australia

    ·The applicant contends that he doesn’t have community ties in Australia.

    Evidence visa program being used to circumvent migration program

    ·The applicant has been enrolled in several courses since 2016 and his current course is an academic regression from and is inconsistent with his previous studies and qualifications. 

    Primary and secondary applicants relationship of concern

    ·Not applicable.

    Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course

    ·He stated that he chose Acumen because his father is going to start a restaurant business which is under construction. 

27. The Tribunal finds that the applicant has not undertaken any significant research into his proposed course, course contents, education provider or educational objectives based on the assertions set out above, which is not behaviour consistent with an individual whose intention is to remain in Australia for the primary purpose of study.

28. Due to the nature of the courses the applicant has undertaken and failed to progress in as set out above, coupled with his present course being an regression from his previous qualifications and his ongoing employment as an uber driving, the Tribunal is of the view that the applicant is enrolling in his current course with the primary intention of attempting to circumvent the intention of the student migration program and remain in Australia on a more permanent basis.     

    Value of the course to the applicant’s future

29. The Tribunal has had regard to the value of the course of study to the applicant’s future, as follows:

    Is the course consistent with the applicant’s current level of education?

    ·The course is a regression from the qualifications the applicant obtained before entering Australia, as set out above.

    Will the course assist applicant to obtain employment or improve employment prospects?

    ·The applicant stated that he wants to work in his father’s restaurant business and that is the only reason he chose to study the course.    

    Relevance of course to past study?

    ·The course is inconsistent with the courses the applicant has completed to date.

    Expected remuneration using qualifications in home country compared to what is receivable in Australia?

    ·The applicant did not give evidence as to expected remuneration.

30. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to his future.  The Tribunal is unable to accept the applicant’s assertions as to the value of the course to his future as he has failed to provide clear reasons as to why his current course is necessary for the purpose of undertaking employment in his father’s business and for this reason, the Tribunal is unable to conclude that his current course will improve his employment prospects or add value to his earning capacity, in view of the qualifications and work experience (referred to above) which the applicant already possess. 

31. While it is not uncommon for an applicant to re-educate themselves or make a change in study plans or work pathways, the Tribunal finds that it is not consistent with the behaviour of a genuine student to seek to change pathways to the extent that the applicant has (evidenced from the courses set out above) where it is not objectively demonstrated how those pathway changes will be beneficial to the applicant in the future, to an extent that would outweigh the financial commitment involved in doing further study.

32. Based upon the applicant’s qualifications and work history to date, the Tribunal is of the view that the applicant has demonstrated that he is more than qualified to return home and work in his father’s business in accordance with his stated objective.       

    Immigration history

33. The Tribunal has had regard to the applicant’s immigration history.  There is no evidence of other visa refusals or cancellations.  However, the Tribunal is concerned by the fact that the applicant has been in Australia since 2016, has a demonstrated work history as an uber driver in circumstances where he has failed to progress academically for several years and where he now undertakes a course which is an academic regression from his previous qualifications.

34. The Tribunal simply does not find this behaviour 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.    

    Any other relevant matters

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

    ·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 completed some units in his current course, 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.

    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

40. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    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.