Jahan (Migration) - [2021] AATA 5671

Jahan (Migration) [2021] AATA 5671 (30 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammad Saroar Jahan
Mrs Afroza Khanam Shima
CASE NUMBER:  2005319
HOME AFFAIRS REFERENCE(S):          BCC2019/6438640
MEMBER:Dominic Triaca
DATE:30 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 30 November 2021 at 2:52pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study level and academic progress – previously completed bachelor’s degree in home country and master’s degree in Australia – enrolment in lower-level courses after gap of more than 4 years – mental health – stable employment – future plans – opportunity in family business – current and proposed studies offer no real value to applicant’s future – member of family unit – wife’s mental health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASES
Kumar v MIBP (2020) FCAFC 16
Singh (Migration) [2019] AATA 2993
Vu Vu (Migration) [2019] AATA 5740
Vu Vu v Minister for Immigration [2020] FCCA 2292
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 27 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 3 December 2019. 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.
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 (Cth) (the Regulations).
The applicants appeared before the Tribunal on 29 November 2021 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration
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.
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.
This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’
Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in accordance with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]
[1] See Singh [2019] (Migration) AATA 2993 at [13]
[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292
The issues in this case arose in the following circumstances, the main applicant is a 32 year old citizen of Bangladesh. He first arrived in Australia on 16 July 2015 (the applicant). The applicant’s wife is the Secondary Applicant. She has resided here since 2016 after the couple married. The applicant applied for a student visa, the subject of this application in December 2019. ON 27 February 2020, a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and he provided the tribunal with a copy of that decision.
The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)The oral evidence and arguments of the applicants presented at the hearing;
(d)All written material filed by or on behalf of the applicant in relation to this case;
(e)Other relevant documents on the Tribunal and Department files;
(f)Evidence of Study, Confirmation of Enrolment;
(g)Applicant’s written response to the tribunal’s request for further information pursuant to s.259(2) of the Act (359 Response);
(h)Applicant’s written statement;
(i)Written submission prepared by the applicant’s representative 1 November 2021;
(j)Medical Certificate 27 October 2021.
The applicant commenced a Diploma of Leadership and Management in October 2021. He is due to complete this course at TKL College in October 2022. He will then commence an Advanced Diploma of Leadership and Management which he is due to complete in October 2023. By this application, he is seeking to remain in Australia to enable him to complete these courses.
Prior to arriving in Australia, the applicant completed a Bachelor of Science in Textile Engineering. He worked as a factory merchandiser in the fashion Industry. After arriving in Australia, he enrolled in a Master of Management for Engineers at CQ University. He completed this course in June 2017.
The applicant plans to return to Bangladesh and work in his family business in the textile, clothing and footwear industry.
The tribunal has some concerns in relation to the application.
The applicant is well educated and seems to be sufficiently qualified to return to Bangladesh and take up an opportunity in his family company. Alternatively, he should have many other employment opportunities available to him on the strength of his Bachelor and Master’s degrees. I do not accept that he requires further study in order to return home and find suitable employment.
I consider that the current and proposed studies do not offer any real value to the applicant’s future. His Master’s degree has a management component that ought to have provided him with skills and knowledge that will assist him in a management role in the textile, clothing & footwear industry if he chooses to pursue it. The courses are not consistent with his level of education, nor do they represent academic progress. They may be relevant to his future plan in the sense that he is seeking a management role, however they are not specific to his industry and I do not consider this further study adds any value to his already completed Master’s Degree. In the circumstances I do not consider these courses are likely to improve the applicant’s employment prospects in his home country or a third country. It follows that I do not accept that the study will increase his level of remuneration at home.
It weighs against the applicant that he has resided here for over 4 years since the completion of his Masters, and he has only recently commenced the current study. I consider that if the current courses were genuinely of value to his future, he would have prioritised this study before now. Whilst he has provided evidence in relation to his mental health and also difficulties he suffered in studying as a result of the Canberra bushfires as well as his wife’s mental health issues. I accept his evidence that these events occurred, and I have regard to the medical certificate he provided. However, I do not accept that these events resulted in a situation in which the applicant was unable to study for any extended period. In this regard I note that the applicant has worked consistently throughout his time in Australia and his work was not interrupted by his mental health issues or the Canberra Bushfires. In the circumstances, I consider that the applicant has had every opportunity to complete the current and proposed study in over four years since completing his Master’s Degree.
Further, if I accepted the applicant had reasonable reasons for not making any academic progress in Australia since 2017, it would not alter my conclusion that the applicant is not a genuine applicant because the applicant seeks, after four years, to study at a lower level. The situation may be different if the applicant were able to demonstrate a clear career trajectory with this study. He has not done so.
The tribunal accepts that the applicant had reasonable reasons for not undertaking further study in his home country. He has completed a degree and it is reasonable for him to seek to further his education in Australia rather than undertake equivalent level study at home. I accept his evidence that there is not an equivalent Diploma or Advanced Diploma course available in Bangladesh. However, I do not consider that these matters assist the application in circumstances in which he is not seeking to study at a higher level here. He is seeking to downgrade his studies to a level well below his Australian qualifications.
There is no specific evidence in relation to the applicant’s circumstances in his home country relative to others there.
The applicant states, and the tribunal accepts, that he has no concerns in relation to potential military service commitments in his home country.
The applicant states, and the tribunal accepts, that the applicant is not concerned by political or civil unrest at home.
The applicant seems to have a good understanding of living in Australia. This is to be expected after living here since 2015. I consider he has a reasonable understanding of his course provider and course.
The applicant works in Australia in customer service. He seems to have a good and stable work history and earns approximately $35,000AUD in his current employment at Andrew’s Meat. He says that he has family owned property in his home country. I do not consider that the family owned property constitutes an incentive for the applicant to return home as it is not in the applicant’s name and could be sold or retained and utilised to produce income without his physical presence. The applicant’s stated expenses are $26,440AUD. Whilst the applicant’s earnings in Australia are more than his expenses, it is difficult to assess these factors as the cost of living in Bangladesh is likely to be reduced so I do not consider that the applicant’s economic circumstances operate as a significant incentive to remain here.
The applicant has travelled between Bangladesh and Australia without any issues. He seems to have complied with the various requirements of his visas since arriving here, as has the Secondary Applicant. I make no adverse findings in relation to their travel or immigration history.
The applicant’s family is his parents and siblings in Bangladesh. He has returned there once since arriving in Australia, when he returned home to be married. He speaks to his family most days via telephone and social media. I consider that the applicant is managing his family ties via telephone and social media without any issues. In circumstances in which he has resided here since 2015 and is seeking to extend his stay, I do not accept that his personal or family ties to Bangladesh operate as a significant incentive for the applicant to return home.
There is no specific evidence to suggest the applicant has ties to Australia that operate as a strong incentive to remain in Australia. I do not consider that the mere presence of the Secondary Applicant operates as such an incentive, noting that she does not work and says she is here to support the applicant. I am satisfied that she is likely to return home with the applicant.
Whilst the tribunal does not consider the evidence is to the effect that the applicant’s employment in Australia operates as a significant economic incentive to remain here, it does consider that the applicant’s good employment history of stable employment is likely to act as an incentive for him to remain here. The applicant has resided here for over 6 years, he has a good work history and is obviously well settled. It seems likely that returning home will involve a fair degree of upheaval to his live which he may wish to avoid, or at least defer, and these matters are likely to act as an incentive for him to remain here. This weighs against the application, although it is not significant.
There do not appear to be any other matters relevant to the application.
The tribunal has considered all the evidence before it. It does not consider the applicant is a genuine applicant. It seems far more likely that the applicant is seeking to utilise the student visa program as a means of maintaining an ongoing residence in Australia, rather than seeking any educational benefit. He is well educated with a Master’s Degree and I consider he is sufficiently well qualified to embark upon his career in Bangladesh without delay.
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).
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
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.
Secondary Applicant.
In circumstances in which the main applicant does not meet the criteria for the granting of a student visa, the Secondary Applicant also fails to meet that criteria.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
D Triaca
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.