Meer (Migration)

[2019] AATA 1463

Meer (Migration) [2019] AATA 1463 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs NOSHEEN ALI Meer

CASE NUMBER:  1718791

HOME AFFAIRS REFERENCE(S):           BCC2017/2105146

MEMBER:E. Tueno

DATE:30 April 2019

PLACE OF DECISION:  Melbourne

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 30 April 2019 at 3:24pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – period of time in Australia – academic progression while on bridging visa – value of course – strong ties to home country – credibility issues – link to claimed business not accessible – overstated husband’s finances – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 10 August 2017 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 June 2017. 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) because they were not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 23 April 2019 to give evidence and present arguments.  The applicant was assisted in relation to the review by her registered migration agent, Mr Imran Ali.

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

   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 intends genuinely to stay in Australia temporarily.

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.

10. In addition to the evidence given at the hearing by the applicant, the Tribunal has had regard to the Department’s file as well as documentation provided by the applicant including a completed questionnaire form provided to the applicant by the Tribunal, documents pertaining to property owned by the applicant’s husband in her home country of Pakistan, a letter dated 23 April 2019 from Education Access Australia confirming the applicant’s progress in a Certificate III Commercial Cookery course, letter dated 12 March 2019 with regards to work placement training at Watergardens Hotel, an undated temporary entrant statement from the applicant, confirmations of enrolment and a business portfolio for the applicant’s cake decorating business in Pakistan. 

11. The applicant is a 34 year old Pakistani national.  She arrived in Australia on 4 April 2017 on a one month tourist visa.  She arrived in Australia with husband and daughter initially with the intention of travelling around Australia.  While they were in Brisbane, she said that she found a cake baking and decorating expo where she participated in classes.  She became keen to learn more about cakes as a result of attending these classes.

12. On 14 June 2017, the applicant applied for a student visa, which was refused by the Delegate.  She was granted a bridging visa and was permitted to study, which she has chosen to do.  In February 2018, she commenced a Certificate III in Commercial Cookery and has completed 23 of the 25 units.  She stated that she has submitted all the work for the entire course and has also completed 3 units of the Certificate IV in Commercial Cookery, which she is currently enrolled in.  She is also enrolled in two future courses, which are a Diploma and Advanced Diploma of Hospitality Management.  The expected completion date of the last course, the Advanced Diploma of Hospitality Management, is 30 August 2020.  This is means the applicant will spent just over 3 years studying in Australia.

13. Prior to coming to Australia, the applicant had completed a Bachelor of Arts at the University of Punjab in August 2014.  From 2009 up until she came to Australia, the applicant also operated a cake decorating business from home.  She stated that prior to coming to Australia, she had no training in cooking, that she was all self-taught.  She said that she initially started out baking for friends and family and was the “go to” person for desserts.  She developed her business by word of mouth.  In 2013 she set up a Facebook page for the business which brought in further business.  She said she was earning approximately 1.6 million rupees annually (which is approximately AUS $16,000 at today’s conversion rate).  In support of this, she presented a business portfolio which referred to a Facebook page.  An internet search for this Facebook page indicated that the link had either expired or was not accessible to members of the general public.  This raises concerns about the validity of the business portfolio and the business that the applicant claims she ran in Pakistan.  

14. She stated that she had never planned to stay in Australia but because of her interest being piqued in the baking courses here, she applied for the Cordon Blue cooking school.  This application was refused.  The only institute that accepted her was Holmes Institute in Sydney.  She decided, upon her husband’s suggestion, to come to Melbourne where she enrolled at Education Access Australia where she currently studies.

15. The Applicant stated that her plan is to return to Pakistan once she completes her studies.  Both her husband and young daughter continue to live there along with her extended family.  She said her plan is to open her own café, which would seat 50 customers serving all day breakfast and comfort food as well as desserts and coffee.  But if this does not happen, she can go work for her father at his hotel.  The applicant stated that the Certificate III qualifies her as a cook, the Certificate IV means that she can work professionally as a cook and the Diploma will help her get into middle management or a supervisory role.  She said the Advanced Diploma will help her the most in opening her business.

16. She said she has known her husband her whole life as they were neighbours growing up.  She confirmed that she in addition to her daughter and husband living in Pakistan, her parents and her two brothers also live with their own respective families.  Her husband’s family includes four brothers and his mother and father and they also live in Pakistan.

17. After his initial visit to Australia with the applicant on a tourist visa, the applicant’s husband returned to Pakistan and has not returned.  She sees her family when she returns to Pakistan, which she has done three times since 2017, and when they meet for holidays overseas.  Her parents help look after the applicant’s daughter when her husband is not able to.  She said that her daughter is at school and she does not want to interrupt either her daughter’s studies or her husband’s work by bringing them to Australia to be with her.

18. She stated that her husband is an education consultant in Lahore, Pakistan.  She stated that her husband earns AUS $6.3 million and pays for everything for her.  The Tribunal queried whether this figure was in Australian dollars, and the applicant confirmed this was correct.  The Tribunal has difficulty accepting this evidence for several reasons.  First, there is no evidence to indicate that this figure is correct.  Second, the only asset described by the applicant as being a significant asset is a residential plot of land valued at AUS $40,000. Third, the financial documents she provided in relation to her husband show that he owns two offices valued at a total of 10,820,000 rupees (which converts to AUS$108,477 at the current conversion rate).  Fourth, the financial documents in the Departments file do not come close to matching the amount earned by the applicant’s husband.

19. The applicant stated that when she is not studying, she spends her time sightseeing, shopping and dining.  She has made friends in her course and attends a gym. 

20. She said that there while there are political issues in Pakistan, at the moment the outlook is promising and there is no civil unrest.  She confirmed there was no military service requirement for her. 

21. In submissions, Mr Ali stated that the applicant is a genuine student who regularly returns to Pakistan and has strong ties to her home country.  Both her husband and her father run successful businesses in Lahore, the region’s capital.  He stated that the applicant has never applied for any other visa to another country or Australia, other than what is mentioned above.  He said the applicant already has cooking experience but with Australian training, she will be better qualified.  Lastly, he stated that having moved from Brisbane to Sydney and then Melbourne demonstrates that she is not simply living and enjoying one city.   She moved to find a place to study.

22. This is not an easy decision for the Tribunal to make.  On one hand, the Tribunal is not satisfied with the evidence presented by the applicant about the business she claimed to run in Pakistan and also about her husband’s finances.  On the other, the applicant has not been in the country for a significant amount of time and even since the refusal of her first student visa application by the Delegate, the applicant has studied and is progressing through her courses. 

23. The Tribunal considers that the courses currently being studied and future courses are consistent with the applicant’s current level of education.  The Tribunal accepts that these courses will assist her in stated goal other either opening a café or working in her father’s hotel, particularly because she has never studied any relevant courses prior to coming to Australia.

24. The applicant stated in her genuine temporary entrant statement that there is a Diploma of Hospitality offered at an institute in Pakistan.  She had wanted to enrol in this when she was younger but when she visited the School she was disappointed.  She saw there was a lack of international exposure as all the chefs were local.  She did not consider studying hospitality again until she arrived in Australia and attended the expo. The Tribunal accepts there would be a difference in teaching hospitality and cookery, both in the quality and nature, between Pakistan and Australia.  The Tribunal considers the applicant had sound reasons for not studying in Pakistan. 

25. The Tribunal also considers that the applicant has considerable personal ties to Pakistan and has returned on three occasions to visit her family.  Whilst there remains doubt about the applicant’s husband’s true income, the Tribunal accepts that he is paying for the applicant’s expenses while she studies in Australia.  There is no evidence to indicate that she has worked in Australia to support herself financially.  To the contrary, the evidence indicates that she has only undertaken unpaid work placement training. 

26. Having only been in the country for two years, it does not appear to the Tribunal that the applicant has developed strong ties to Australia yet. 

27. When considering all the evidence, the Tribunal is not of the opinion that the applicant is using the student visa to maintain ongoing residence.  Whilst she could have included her husband and daughter as dependants in her application, she has not done so. 

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

29. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

30. 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.

    E. Tueno
    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.