Khan (Migration)

[2020] AATA 5034

Khan (Migration) [2020] AATA 5034 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shoaib Zaman Khan

CASE NUMBER:  1922437

HOME AFFAIRS REFERENCE(S):          BCC2019/1297536

MEMBER:Amanda Upton

DATE:15 September 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 15 September 2020 at 1:15pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – family remains in home country – applicant changed to vocational courses – value of the course to future career – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 499; Direction No 69
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 26 July 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 14 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

   The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.

3. The applicant appeared before the Tribunal on 15 September 2020 to give evidence and present arguments.

4. The applicant was assisted in relation to the review by their registered migration agent.

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.

   Genuine applicant for entry and stay as a student (cl.500.212)

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.

Entry and Visa History

1. The applicant in this case is a Pakistani man who first arrived in Australia in April 2012, 8 ½ years ago.

Time Onshore

1. The applicant has been home four times since his arrival in Australia.

Study History

1. Prior to arriving in Australia, the applicant had obtained a Bachelor of Commerce that he completed in June 2010. He has previous experience as the assistant manager to the executive director of DreamWorld Resort in Pakistan. The Executive Director was the applicant’s father.

2. Since being in Australia, the applicant has completed;

   ·     Bachelor of Business (Accounting)

   ·     Skilled Migration Internship Program (Accounting)

   ·     Diploma of Leadership & Management

   ·     Advanced Diploma of Leadership & Management

3. He has been enrolled in Diploma and Advanced Diploma of Business and a Certificate IV in Frontline management however has not completed these courses.

4. He is currently enrolled in a Master of Business Administration that commenced in July 2020 and is scheduled for completion in November 2021. Prior to this he has not been enrolled in a course since August 2019. The applicant says that the reason for this was due to his visa refusal.

Evidence in Support of Application

1. In support of his application, the applicant has provided a number of documents.

2. The Tribunal has considered these documents and the evidence given by the applicant in reaching its decision.

Applicant’s circumstances in their home country

1. The Tribunal has had regard to the applicant’s circumstances in Pakistan as follows;

   Reasons for not studying in home country

   ·The applicant says that the education infrastructure is not adequate as there is no practical exposure for graduates.

   ·It is difficult to get admission into university as it is competitive.

   ·He considers the foreign education to be of a higher standard.

   ·Foreign degrees are more highly regarded in Pakistan.

   Personal ties to home country

   ·The applicant’s family including his wife and two children (6 and nearly 3 years old) live in Pakistan – he last saw them in October 2018. He has a sister who lives in the Fiji Islands. His family has visited him twice in Australia.

   ·The applicant has no significant property or assets in either Australia or Pakistan.

   ·The applicant has returned home 4 times since his arrival in Australia.

   Economic Circumstances in Australia as incentive not to return home

   ·The applicant has worked as an intern (3months) and casual console operator. The applicant is not currently working. He has not worked since June 2015.

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

2. The Tribunal is unable to accept that applicant’s assertion about study in his home country, it is a claim made without supporting evidence. The applicant has not provided any specific details establishing benefits to be gained by studying the proposed course in Australia as opposed to studying in his home country considering the financial outlay and further time and disruption required to study in Australia.

3. The Tribunal accepts that the applicant has family ties in Pakistan and these are potentially significant given that they are his wife and two sons however also considers that the applicant has been onshore for a period of over 8 years and has only returned home 4 times during this period. The Tribunal is unable to conclude that these ties constitute a significant incentive for the applicant to return to his home country.

4. The Tribunal does not consider that the applicant has strong economic or financial ties that constitute an incentive to return to his home country

Applicant’s potential circumstances in Australia

1. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;

   Applicant’s ties with Australia

   ·The applicant has a sister in law in Australia, she lives in Sydney. Ordinarily he would see her every six months or so.

   Evidence visa program being used to circumvent the migration program

   ·The applicant enrolled in a number of short vocational courses after the completion of his Bachelor study and internship program before enrolling the in the MBA. Whilst the Tribunal considers that the MBA is a logical progression from his previously obtained qualification, it however has concerns that the applicant did not enrol in such a course after the completion of the Bachelor qualification but rather enrolled in a series of lower level courses first.

   ·The applicant told the Tribunal that this had occurred as he was confused about the course outline at the time he enrolled in the Diploma of Business and considered that at the time the MBA would be a big investment so he chose the Diploma as he considered that it was at the same level as the Master course.

   ·The Tribunal considers this to be an indication that the courses are being used by the applicant to extend stay in Australia rather than for a specific study purpose or plan.

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

   ·The applicant provided information about the education provider generally, it does not relate to how the course is relevant to him and his circumstances specifically. The applicant told the Tribunal that he chose this course provider ultimately because it was the one that would give him an enrolment in the course.

2. The Tribunal accepts that the applicant does not have family ties that constitute an incentive to remain in Australia however equally notes the length of time that the applicant has spent onshore in Australia and concludes that the applicant over this time would have established a settled life in Australia, it is a significant period of time to have lived somewhere.

3. The Tribunal accepts that the applicant does not have employment ties to Australia that constitute an incentive to remain.

Value of the course to the applicant’s future

1. The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;

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

   ·The applicant feels that his current studies are not enough as he is lacking in qualifications and practical knowledge.

   ·The applicant considers that on completion he can obtain a role as a Business operations manager or a CEO in multinational firms in his home country.

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

   ·The applicant intends on returning to Pakistan and may apply for a job in a multinational company. He considers that the course will give him opportunity globally and locally to work in a professional role.

   ·The applicant told the Tribunal during the hearing that he had plans to open business but, in the alternative,, he will be able to get a job in a company with his qualification.

   ·The applicant told the Tribunal that him and his father would like to open their open business, that being a theme park as this is where his father has been working and the MBA will provide him the knowledge to do this.

   Relevance of course to past study?

   ·The applicant has previously completed a Bachelor of Business, the current Master course is a relevant progression. Irrespective of this, the Tribunal notes the applicant’s study history subsequent to the completion of the Bachelor course and has concerns that as a whole, the history is indicative of the applicant using further study as a means to extend stay rather than for the primary purpose of progressing academically.

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

   ·The applicant provided information as to what salary he might hope to achieve, the figure is not referable to any specific employment or supported by any material.

2. The Tribunal does not consider that the applicant has established the value of the course to his future as he has not provided detailed or compelling evidence as to his plans or goals against which to assess this fact. The Tribunal acknowledges his intentions to either open a business with his father or to have the option of gaining employment however, the Tribunal considers that the applicant’s stated career plans/goals, are general in nature and currently very aspirational as they are not supported by any material such as specific business plans, strategy or information as to the business currently and how it may be improved.

3. The Tribunal considers the applicant’s stated plan of opening a business such as the applicant describes to be extremely aspirational. Nor does the applicant provide specific information as to the alternative, that he of obtains employment, beyond general information as to the types of roles that may be available to him.

4. The Tribunal is unable to conclude that there is any genuine and meaningful connection between career goals and the current course of study such that it justifies the expense and disruption of overseas study.

5. The Tribunal considers that whilst the applicant previously has been a successful and genuine student, the applicant’s current enrolment is not for the primary purpose of studying and progressing academically but rather as a means to extend stay in Australia.

Immigration History

1. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations. The Tribunal makes no adverse finding as to the applicant’s immigration history.

2. The Tribunal is concerned however as to the length of time that the applicant has spent onshore being indicative in and of itself of an intention not to remain on a temporary basis. The applicant told the Tribunal in response to this concern that he had been studying the whole time and the period that he was not from August 2019 to July 2020 was due to not being able to obtain an enrolment due to is visa refusal and the education providers being concerned about their ratings in giving students with visa refusals enrolments. The Tribunal does not accept this as a reason for such a considerable break in study as clearly the applicant was able to get an enrolment in a course as he is now studying.

Any other relevant matters

1. 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.

2. Although the applicant provided information to the Tribunal demonstrating that he has successfully completed some 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.

3. The Tribunal considers that an applicant who is a genuine temporary entrant in Australia for the purpose of studying and to progress academically will be able to demonstrate circumstances that evidence a genuine intention to remain temporarily as a genuine student. The Tribunal acknowledges that these things will be different in each individual case and may change over time with respect to an individual applicant.

4. The Tribunal considers that the applicant has failed to establish such current circumstances and as such the Tribunal does not accept the applicant’s claim to be a genuine temporary entrant.

5. Considering the above individually and collectively, 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).

6. 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.

7. 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

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

   Amanda Upton
   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.