Maqsood (Migration)

[2021] AATA 2939

Maqsood (Migration) [2021] AATA 2939 (16 July 2021)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Moazzam Maqsood

CASE NUMBER:  1922434

HOME AFFAIRS REFERENCE(S):          BCC2019/1721926

MEMBER:Brian Camilleri

DATE:16 July 2021

PLACE OF DECISION:  Sydney

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

· cl.500.211 of Schedule 2 to the Regulations.

Statement made on 16 July 2021 at 4:56pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – land ownership in Pakistan – family illness delayed study completion – multiple course cancellations – improved academic results – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 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 25 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 8 April 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.

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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) and the applicant did not comply with the genuine temporary entrant criterion.

4. The applicant appeared via telephone before the Tribunal on 15 February 2021 to give evidence and present arguments. There was no agent or interpreter present.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 complies with the genuine temporary entrant criterion.

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

1. 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?

1. 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.

2. 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.

Hearing – 15 February 2021

1. The hearing was attended via telephone by the applicant. It was explained to the applicant that the law which is applied by the Tribunal is the same law, which is applied by the Department of Home Affairs (the Department), but the Tribunal and the Department are separate and distinct agencies.

2. The applicant was informed that the Tribunal Member had access to:

   a.files of both the Department and the Tribunal relevant to his visa application and visa review;

   b.the delegate’s decision;

   c.a copy of the travel and movement record of the applicant showing his movements to and from Australia;

   d.the PRISMS (Provider Registration International Student Management System) record relevant to the applicant, listing all courses in which he had enrolled, the duration of the courses and whether the courses were cancelled, finished, completed, studying or approved for future study.

   e.the information in the response to the Tribunal’s request for student visa information (Form M17) completed by the applicant.

3. The applicant was also informed that the Tribunal’s review would involve a consideration of the applicant’s circumstances in his home country, the applicant’s circumstances in Australia, the applicant’s travel and movement record, the applicants’ academic record and the value of the course to the applicant’s future prospects and any other relevant matter.

4. Furthermore, the applicant was informed that the Tribunal was required to consider the facts and circumstances as they stood at the date of the decision and not the facts and circumstances as they stood as at the date of the delegate’s decision (made in 2019).

5. The Tribunal also informed the applicant that in conformity with the provisions of the Migration Act 1958 (Cth) (s359A) the Tribunal would put to him any information relied upon which in terms involved material comprising a rejection, denial or undermining of his case and he should use the hearing as an opportunity to correct, explain and address any such material or information and concerns.

   Applicant’s Circumstances in Home Country

6. The applicant is thirty-one (31) years old. He married in early 2018. His parents, wife, two sisters and two brothers live in his home country of Pakistan. He listed four assets (residential property, residential land, commercial property and an apartment) with a combined value of $780,000. Prior to arriving in Australia, he studied two courses: (a) Metric in Computer Science (graduating in 2006); (b) Intermediate in Commerce (graduating in 2008). In written submission, he stated he worked as an accounting assistant for five years for an engraving company. He failed to declare his salary. At hearing he explained that his father and uncles operate a business manufacturing prizes, awards, medals, trophies and badges for supply to schools and companies. He worked for a time for this business before leaving for Australia.

   Applicant’s Circumstances in Australia

7. The applicant first arrived in Australia on 8 October 2015 on a Student (TU 572) Visa valid to 8 April 2019. For this initial visa he was enrolled to undertake a General English (Beginner to Advanced) course followed by a Bachelor of Accounting course.

8. The applicant deferred his course several times and stated that his father became unwell and he was under pressure to return to Pakistan to look after his family (as he considered it was his cultural duty). He also struggled with the academic level as he had no academic foundation in accounting.

9. On 8 April 2019 (the day his visa was due to expire) he applied for a second Student (Subclass) 500 Visa. At the time he was enrolled in the same courses (which he had failed to finish in the proposed time frame): (a) Bachelor of Accounting. His application for a Student Visa was rejected on 25 July 2019.

10. He declared his annual living expenses as $18,120. In his written response to the Tribunal, he listed one employment role as a console operator in a convenience store for three years. The applicant failed to declare his annual salary. The applicant had also been working as a share-ride driver.

Applicant’s Immigration History

1. Since his arrival in Australia on 08/10/2015 the applicant has made the following trips to and from Australia:

Trip	Departure from Australia	Arrival in Australia
Onshore	N/A
5	16/12/2019	06/02/2020
4	11/01/2019	22/02/2019
3	18/12/2017	20/04/2018
2	21/06/2017	29/07/2017
1	22/11/2016	01/01/2017
First Arrival	08/10/2015

1. The applicant’s movement record is unremarkable. He has returned to his home country to visit family six times in five years which is consistent with a genuine temporary entrant maintain ties with his home country.

Applicant’s Academic Record and Progress

1. At the time of making its decision the Tribunal had available it the applicants academic record as set out in the Provider Registration International Student Management System (PRISMS) (as at 13.1.2021). It showed the courses undertaken by the applicant. 

Course	Status
General English - Beginner to Advanced (8 to 52 weeks) [053380M]             (07/12/2015 to 11/02/2016)	Finished
Bachelor of Accounting [062949M], (05/02/2016 to 11/01/2019)	Cancelled
Bachelor of Accounting [062949M], (05/02/2016 to 05/09/2016)	Cancelled
Bachelor of Accounting [062949M], (05/02/2016 to 08/12/2017)	Cancelled
Bachelor of Accounting [062949M], (05/02/2016 to 07/12/2018)	Finished
Bachelor of Accounting [062949M], (07/03/2016 to 08/02/2019)	Cancelled
Bachelor of Accounting [062949M], ((21/01/2019 to 19/02/2019)	Cancelled
Bachelor of Accounting [062949M], (13/05/2019 to 20/11/2020)	Cancelled
Bachelor of Accounting [062949M], (13/05/2019 to 16/04/2021)	Studying

1. The applicant first arrived in Australia on 8 October 2015. He was enrolled to undertake a General English (Beginner to Advanced) course followed by a Bachelor of Accounting course. He commenced the first course on 7 December 2015 and completed it on 11 February 2016 (a period of two months). According to the PRISMS, he immediately commenced his Bachelor of Accounting Course (on 5 February 2016) and his course is listed as “Finished” on 7 December 2018.

2. At hearing, the applicant partly explained these cancellations and deferments claiming he had paid the course fees late, the college had changed the semester dates and that he was attempting to minimise his study load since he felt stressed, his father was sick (requiring him to return home) and his extended family (who live in the same complex) were at odds with each other. He admitted he had not properly focused on his studies as he should have. At hearing, he clarified to the Tribunal that although his course is listed as “Finished”, he has not completed all the subjects and was not re-commencing the same course (but instead finishing the remaining subjects).

3. Although the applicant got off to a slow start and took longer than expected to complete the first part of his Bachelor of Accounting course, he has reached the end and since the time of the delegate’s decision has demonstrated improved academic progress.

Value of Course to Applicant’s Future Prospects

1. The applicant stated he expected to earn between 110,000 and 150,000 Rupees per month on return to Pakistan (the equivalent of $10,600 to $14,500 per annum). He stated that international qualifications from developed nations were highly respected in his home country.. On return to Pakistan, he stated he would first look for a professional job as an accountant (which profession is in high demand in his province which is dominated by large factories and the manufacturing industry) in order to gain experience. After this he would join his family business.

2. The applicant has been in Australia for over five and a half years (at the date of the Tribunal’s decision) in order to complete a three-year degree. Furthermore, his course (which was due to finish in April 2021) is presumably now completed so his reason for remaining in Australia on that ground at least has expired.

3. The Tribunal is required to make its decision on the facts and circumstances as they exist at the time the matter under review comes before the Tribunal (i.e. at the date of its decision) and not on the facts and circumstances as they existed at the date of the delegate’s decision.

4. In this case the decision under review (at the time it was made by the delegate) was proper and reasonable. The applicant had deferred or cancelled his course five or six times without adequate explanation, giving the impression he was attempting to circumvent the migration system by utilising a student visa in order to maintain residence here and pursue employment opportunities. But circumstances have changed since that time.

5. The applicant has explained his deferrals and also demonstrated the value of his course to his future career prospects. Much time has also elapsed between the date of the rejection of his application by the delegate and the hearing by the Tribunal of the application for review and he has expended considerable funds in the meantime to further his education. At hearing, he stated the entire course would have cost him almost AUD$40,000 (which is higher than his initial CoE stated since his education provider has increased their fees). The applicant’s father has returned to health, he is now married, and his family’s internal tensions have dissipated. He has shown increased maturity and focus in completing most of his course (at the date of the hearing). The Tribunal is prepared to presume he has now finished his course.

6. In view of the fact that the applicant somewhat belatedly achieved his objective and he has expended considerable time and money the Tribunal considers that his application should be considered favourably.

7. The information he has provided regarding his circumstances in his home country, potential circumstances in Australia, the value of his proposed courses to his future, immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

Other Relevant Matters

1. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant's genuine intention to temporarily stay in Australia and finds that there are no other relevant matters for consideration.

2. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

DECISION

1. The Tribunal remits the application for Student (Temporary) (Class TU) visas for reconsideration with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa not to grant the applicant a Student (Temporary) (Class TU) visa.

   · cl.500.211 of Schedule 2 to the Regulations.

Brian Camilleri
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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.