Khan (Migration)

[2024] AATA 3072

Khan (Migration) [2024] AATA 3072 (26 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Usman Khan

REPRESENTATIVE:  Mr Mohiuddin Ahmed (MARN: 0963102)

CASE NUMBER:  2301403

HOME AFFAIRS REFERENCE:               BCC2022/3436661

MEMBER:Lilly Mojsin

DATE:26 July 2024

PLACE OF DECISION:  Sydney

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

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 26 July 2024 at 11:05 am

CATCHWORDS  
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant did not comply with visa condition 8202 (attendance and course progress) for over 2 years – restrictions around COVID at that time affected his ability to enrol – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359

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 20 January 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant arrived in Australia on 29 June 2019.

3. The applicant commenced studies at the Australian Institute of Business and Management Pty Ltd [03171A], Bachelor of Information Technology [098239M] but did not complete that study. He then enrolled at Macallan College Pty Ltd [03468F], in Certificate III in Carpentry [099109B], Course Start Date:03/02/2020 and Course End Date:30/01/2022. He did not commence those studies. The applicant also enrolled in Academies Australasia Polytechnic Pty Limited [02439G]  Course: Bachelor of Business (Leadership and Management) [097316M] Course Start Date: 18/07/2022 with Course End Date: 11/07/2025. He did not commence those studies.

4. The applicant enrolled at The Early Childhood Learning Company Pty. Ltd. [03858C] Course: Certificate IV in Commercial Cookery [102511F], Course Start Date: 18/07/2022 Course End Date: 25/02/2024 and is currently enrolled in Diploma of Hospitality Management [102512E], Course Start Date: 16/09/2024 and Course End Date: 13/09/2026.

5. The applicant applied for the visa on 26 August 2022. 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.

6. The applicant appeared before the Tribunal on 24 July 2024 via Teams video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

7. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and interpreter and was able to maintain line of sight and appropriate communication throughout the proceedings with the applicant.

8. The applicant was assisted in relation to the review. The representative did not attend the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

11. The Tribunal has before it the Department file and documents submitted by the applicant to the Tribunal that include a s359(2) response, Confirmation of Enrolment and other relevant documents.

12. 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.

13. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No. 108 attached herewith. This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs to determine whether the applicant genuinely intends to stay in Australia temporarily.

14. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision. The Court went on to note that [the Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.

    [1] [2020] FCAFC 16 (24 February 2020)

15. The applicant is a citizen of Pakistan. The Tribunal does not have any information before it that citizens of Pakistan, in statistical intelligence and analysis reports on migration fraud and immigration compliance, compiled by the department, indicate there is need for further scrutiny. Nor does the Tribunal have any information that the applicant or a relative of the applicant has an immigration history of reasonable concern. 

16. The applicant does not have military service commitments that would present as a significant incentive for the applicant not to return to his home country and there is no political and civil unrest in Pakistan.

17. The applicant is unmarried and has no dependent children in his home country. The applicant’s  parents and 5 siblings live in Pakistan.

18. There is no information before the Tribunal to suggest that the applicant has travelled to other countries or made applications for visas that have been refused.

19. The applicant works as a Chef Assistant in Australia, for the Denon Groups, where they serve different types of international foods. He joined last year in 2022.

20. The applicant has been living in Australia for over 4 years. The applicant is single with no children. Whilst the applicant does not have family in Australia the applicant’s economic circumstances in Australia present an incentive for the applicant to remain in Australia.

21. The applicant had completed a Diploma of IT in Pakistan and worked as a Computer Operator from August 2018 to February 2019. His father told him to go for higher education overseas. On arrival in Australia in 2019, the applicant enrolled in a Bachelor of IT that he did not complete it, he enrolled in 2 other courses prior to enrolling in his current studies. He only studied for 4 months after the grant of his Student visa. There was a study gap between 4 November 2019 to 18 July 2022. The applicant’s explanation for this gap is that COVID was unsettling for him. He also, in 2019, had to go back to Pakistan as his father had health issues. His mother had a disease as well that added to his stress. He came back to Australia, COVID hit and his grandfather passed away. His brother also caught COVID. Whilst there are no apparent inconsistencies in information provided by the applicant in his Student visa application, the applicant is studying in a field unrelated to his previous studies or employment.

22. The applicant claims that Australia is the second most preferred destination after Switzerland to study professional cookery and hospitality management, the courses offered in Australia have a high demand in Pakistan and these courses will definitely lead him to a rewarding career. There is a real opportunity in Australia of experiencing a real workplace environment where he can participate, contribute, and interact with industry-experienced trainers to gain current industry skills, relevant to his future career.

23. His brother has completed a Masters in Food Technology and works in a biscuit company and his youngest brother is still studying. In Pakistan there are several institute to studies cookery and management, but the quality of education is below standard and it does not meet the international market. He will return to Pakistan once he has finished the course. The applicant and his father want to start a catering business. His father, who had been a banker previously, runs a business – a flower decoration service for weddings etc.  

24. After  weighing up the applicant’s circumstances, immigration history and any other relevant matters, the Tribunal is satisfied, on balance, that the applicant genuinely intends a temporary stay in Australia.

25. Accordingly, the applicant meets cl.500.212(a).

26. For the applicant to meet cl 500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

27. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl 500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), and 8533 (notify address/education provider).

28. Visa condition 8202 (attendance and course progress) is mandatory for all student visas granted to primary applicants. Condition 8202 requires the student to be enrolled in a full time, registered course, achieve satisfactory course progress, achieve satisfactory course attendance and maintain enrolment in a course at the same level or higher Australian Qualifications Framework level for which they obtained the visa.

29. The applicant did not comply with visa condition 8202 (attendance and course progress) for over 2 years after his arrival in Australia. The Tribunal is satisfied that the restrictions around COVID at that time affected his ability to enrol. In light of the applicant’s current circumstances, he has now completed a Certificate IV in Commercial Cookery, he is about to complete a Diploma in Hospitality Management [111552M] the Tribunal is satisfied that the applicant intends to comply with the conditions of the visa subject to which the visa is granted as required by cl.500.212(b).

30. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter. There is no other relevant matter.

31. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

32. 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

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

    ·cl 500.212 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

    This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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.

    iii. b. Previous travels to Australia or other countries, including:

    iv. 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;

    v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    vi. 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

    vii. 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 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.