Mohammed (Migration)

Mohammed (Migration) [2023] AATA 3052 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Akheel Ahmed Khan Mohammed
REPRESENTATIVE:  Mr Prabhat Krishna Dwarampudi (MARN: 1462995)
CASE NUMBER:  2203920
HOME AFFAIRS REFERENCE(S):          BCC2020/1656188
MEMBER:Warren Stooke AM
DATE:11 August 2023
PLACE OF DECISION:  Melbourne

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

Statement made on 11 August 2023 at 11:02am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant has stronger ties to Australia through residency and lifestyle than with his relative future prospects in India – applicant was not a genuine applicant for entry and stay as a student – use the student migration program to maintain ongoing residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 1 June 2020. 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 (Cth) (the Regulations) because the delegate was not satisfied the expense of travel and study in Australia is likely to be offset by the potential improvement of income in their expected employment field, especially when their career goals could be adequately served by studying in their home country.
The applicant appeared before the Tribunal on 8 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was assisted in relation to the review.
The Tribunal, as background to the hearing, noted that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 28 February 2022 and that he understood the content of the decision. The applicant stated that he understood the basis of the decision and stated that the delegate had said that the applicant was not a genuine student, who was in Australia for the intention of studying.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
The applicant provided evidence that he arrived in Australia on a Visitor Visa on 16 September 2019.
The applicant was granted a Bridging Visa A on 1 June 2020 with the condition 8101 - ‘no work’, that became active on 6 June 2020, when his Visitor Visa ended.
The applicant provided evidence that he completed the following courses of study:
a.General English at Sacred Heart International College from 8 June 2020 to 16 August 2020 (10 weeks);
b.Certificate III in Light Vehicle Mechanical Technology from 13 September 2022 to 30 June 2023.
The applicant provided evidence that of Confirmations of Enrolment to undertake the following courses of study:
a.Certificate IV in Automotive Mechanical Diagnosis from 10 July 2023 to 9 January 2024;
b.Diploma of Automotive Management from 29 January 2024 to 28 July 2025.
The applicant provided evidence that he was granted a confirmation of enrolment to undertake a Certificate IV in Automotive Mechanical Diagnosis from 1 October 2022 to 1 April 2023 and a Diploma of Automotive Management at the Brighton Institute of Technology from 1 May 2023 to 29 April 2024, which were not commenced or completed.
The applicant provided evidence of health insurance with Nib that commenced on 1 June 2020 and was valid to 15 January 2023.
The applicant provided evidence of the death of his brother, Jameel Ahmed Khan dated 19 August 2020.
The Tribunal asked the applicant: “Do you understand that to be granted a Temporary Student Visa, it is a requirement that you satisfy the Minister that you are a genuine temporary entrant for entry and stay as a student? The applicant responded: “That’s right”.
The applicant stated that he came to Australia on 16 September 2019, with his mother, to visit his brother and that he returned to his home country in December 2019. The applicant stated that he returned to Australia in March 2020 on his original visitor visa and then ‘lockdown’ started due to Covid, where no flights were going outwards.
The applicant confirmed to the Tribunal that he completed a Certificate III in Light Vehicle Mechanical Technology on 30 June 2023 and that he has commenced Certificate IV in Automotive Mechanical Diagnosis from 10 July 2023, which is scheduled to finish on 9 January 2024.
The applicant stated that the online courses at Acumen College were difficult to understand.
The applicant provided evidence that he is not working in Australia.
The Tribunal asked the applicant what he was doing between August 2020 until September 2022, when he commenced a Certificate III in Light Vehicle Mechanical Technology on 13 September 2022. The applicant responded that Covid, with lockdowns, had commenced (March 2020) and he studied General English online, at Sacred Heart International College from 8 June 2020 to 16 August 2020 -10 weeks. He stated that the original confirmations of enrolment in the automotive stream were cancelled by Brighton Institute of Technology.
The applicant stated that he was undertaking automotive courses, as his family has a related business in the automotive industry and that he was learning high quality services and equipment, which he was hopeful to take that knowledge back to his home country.
The applicant stated that in India he was helping his family in the garage business, which is run by his brother.
The applicant stated that he has completed 2 of the 8 units assignments to complete the current course and that after a further 6 months to complete his Diploma he will return to his home country.
The applicant provided evidence that he has a wife and a six year old daughter and 4 year old son.
The applicant stated that he lives in his brother’s house, who is a temporary resident on a 485 visa.
The applicant stated that his brother is supporting him in Australia and another brother in India sends money for tuition fees.
The applicant provided the Department with a GTE statement on 1 June 2020 that included the following extracted information:
“In order to gain wider experience, I started looking for options to upgrade my skills to be successful in my father’s business, in the process I started work at our family mechanic shop.
Being in the Automotive industry since the beginning of my career, after visiting Australia, and looking at the way the Automotive industry runs here, which are very different to what we have in India , my interest to gaining knowledge in the industry increased, as I am seeking to have better opportunity in India, and I want to get better knowledge and understanding of new techniques that help me to utilize my experience and expertise, which enables me to make a positive contribution to my country (INDIA). I came to Australia to spend time with my brother and visit places. But when I came across the education system in Australia, it made to concentrate to study in Australia. The reason for choosing to study in Australia is that it provides a multicultural ambiance. Offering a variety of study options from a range of Universities, Australia creates a space for International students to choose their best interests to pursue their studies. International students are exposed to various disciplines, allowing them to understand the practices in other parts of the world. Skills learned from Australian schools are highly sought after due to the impressive international reputation of the Australian education system. The courses are tailor-made for international students like me and the curriculum makes academically stronger and it helps us to secure a job anywhere in the world or even to develop my own business.”
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has considered the written evidence, provided by the applicant, in the context of Direction 69 and finds that the applicant is not a genuine temporary entrant for the following reasons:
a.The applicant stated that he arrived in Australia on a Visitor Visa on 1 November 2019 and applied for a Student visa whilst onshore. In this regard, the applicant was separated from his immediate wife and children, as a consequence of the Covid lockdowns and completed an online General English language course at Sacred Heart International College from 8 June 2020 to 16 August 2020 (10 weeks). The applicant has had opportunities to return to his home country, but has chosen to remain in Australia for an extended period without study and without ‘work rights’ given his 8101 visa condition;
b.The Tribunal acknowledges that the applicant temporarily returned to India at the end of December 2019 and subsequently returned to Australia in March 2020 on the original Visitor Visa, which was prior to the impending Covid lockdowns in Victoria. The applicant demonstrated a commitment to study and enrolled in an online General English language course at Sacred Heart International College from 8 June 2020 to 16 August 2020 (10 weeks), which he completed. However, the Tribunal is not satisfied that cancelled automotive courses in the period from 16 August 2020 to September 2022 is consistent with the expectation of a genuine temporary entrant for entry and stay as a student. In this regard, the applicant commenced a Certificate III in Light Vehicle Mechanical Technology on 13 September 2022, which was almost one year after the last Covid lockdown in Melbourne that ended on 21 October 2021 and more than two years after the applicant’s last course of study. As such, the Tribunal has serious concerns that the applicant is not a genuine temporary entrant for entry and stay as a student given that the applicant did not complete any course of study from 6 August 2020 until he commenced and completed a Certificate III in Light Vehicle Mechanical Technology from 13 September 2022 to 30 June 2023. The Tribunal considers that the absence of study during this period, particularly when lockdowns had ceased, demonstrates that the applicant is not a genuine temporary entrant for entry and stay as a student;
c.Whilst, the applicant has immediate family in India, including a wife and two children and a brother with whom he has worked with in the automotive industry, through a family garage operated by his brother, the Tribunal finds that the presence of a brother in Australia on a Temporary 485 visa is a strong incentive to remain onshore for the lifestyle and residency and a potential to access a permanent residency pathway;
d.Whilst the applicant has provided evidence of ties to his family in India, with a wife and two children resident in India, the Tribunal has serious concerns regarding the value of the courses in Australia to a future career in an existing family business and that it is the applicant’s genuine intention to remain in Australia temporarily. The applicant’s behaviour through not expediting his studies to join his immediate family and his decision to continue to reside in Australia without work rights, and not undertaking study for a prolonged period, suggests to the Tribunal that the applicant has stronger ties to maintaining residency and a lifestyle in Australia than returning to his home country. The Tribunal finds on balance that the applicant has demonstrated stronger ties to maintaining Australian residency and lifestyle relative to returning to India.
On balance, the Tribunal considers that the applicant has stronger ties to Australia through residency and lifestyle than with his relative future prospects in India and the Tribunal is satisfied that the applicant is not a genuine entrant for stay and study or to improve his career prospects in India. As such, the Tribunal finds that the applicant is using the student visa stream to maintain ties to a lifestyle and residency in Australia.
Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to India and that to the contrary there is every indication that the applicant has developed a desire to remain in Australia for the purposes of residency and the lifestyle. As such, the Tribunal is satisfied upon the review of the criteria pertaining to Direction 69 that there is no further material before the Tribunal to be considered, that would mitigate a finding that the applicant is not a temporary genuine entrant for stay and study in Australia.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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(a).
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM

Attachment – Direction No.69
DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 18 April 2016
Peter Dutton

Minister for Immigration and Border Protection
Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.
Part 1 of Direction No. 69 - Preliminary
Name of Direction
This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 69.
Commencement
This Direction commences on 1 July 2016.
Interpretation
Act means the Migration Act 1958.
Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.
Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.
Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Regulations mean the Migration Regulations 1994.
Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.
Spouse has the same meaning as the definition of the term in section 5F of the Act.
Student visa means a Subclass 500 (Student) visa
Student Guardian visa means a Subclass 590 (Student Guardian) visa.
Application
This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.
This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.
Preamble
The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.
An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.
The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
a.the applicant’s circumstances; and
b.the applicant’s immigration history; and
c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and
d.any other relevant matter.
This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.
Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily
Part 2 of Direction No. 69 - Directions
Assessing the genuine temporary entrant criterion
1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:
a.considering the applicant against all factors specified in this Direction; and
b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).
3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.
4.Circumstances where further scrutiny may be appropriate include but are not limited to:
a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;
b.the applicant or a relative of the applicant has an immigration history of reasonable concern;
c.the applicant intends to study in a field unrelated to their previous studies or employment; and
d.apparent inconsistencies in information provided by the applicant in their Student visa application.
5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.
The applicant’s circumstances
6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.
The applicant’s circumstances in their home country
9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:
a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;
b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;
c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;
d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and
e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.
10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.
The applicant’s potential circumstances in Australia
11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
d.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2023] AATA 3052

11 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction