Nawaz (Migration)

[2023] AATA 3470

Nawaz (Migration) [2023] AATA 3470 (21 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Nawaz

REPRESENTATIVE:  Mr Gurvinderjeet Singh Parmar (MARN: 1808842)

CASE NUMBER:  2211072

HOME AFFAIRS REFERENCE:               BCC2022/648744

MEMBER:Lilly Mojsin

DATE:21 September 2023

PLACE OF DECISION:  Sydney

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

·cl 500.212 of Schedule 2 to the Regulations.

Statement made on 21 September 2023 at 8:57am

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay in Australia as a student – satisfied the course is relevant to the applicant’s proposed future employment in his home country – proximity to completion of course –positive study progress – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
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 13 July 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this review had 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 that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appealed that decision to this Tribunal on 1 August 2022 annexing a copy of the Department Decision Record to the review application.

5. The applicant appeared before the Tribunal on 20 September 2023,  to give evidence and present arguments, via Teams Video from Adelaide. The Tribunal provided an interpreter for the applicant but the applicant did not use the services of the interpreter.

6. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

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

8. The applicant was assisted in relation to the review

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. At the time of application for the visa the applicant was enrolled in Certificate III in Carpentry. At the time of the Tribunal hearing the applicant was enrolled in an Advanced Diploma in Civil Construction Design.

10. On 22 August 2023 the applicant, in response to the s 359(2) invitation provided the following supporting documents:

    ·     Completed AAT Student Visa Information Form

    ·     PTE Academic English test report (valid until 18 February 2024)

    ·     Affidavit of Support from applicant’s father,  Muhammad Nawaz

    ·     Confirmation of Enrolment for Advanced Diploma of Civil Construction Design (as at 3/1/2023)

    ·     NIB OSHC Confirmation of Health Cover (policy end date: 2/2/2024)

11. In response to the s 359(2) invitation the applicant stated:

    ·In response to the question of how and why the applicant chose the education provider for the Australian course they are studying the applicant advised:

    ‘I have been searching for the right college since my arrival in Australia. I was enrolled in SIBT which was very hard on students and provided little help and I then decided to change my college to Lennox College on the suggestion of my friends but faced the same problem. Then I moved to Nova Institute to study the carpentry course as I was fascinated by the construction sector. As I came to know more about Adelaide, I switched my course to higher course of Advance Diploma in Civil Construction Design at Valley International College on the recommendation of the friends and references.’

    ·In response to the question of whether there were similar courses available in the applicant’s home country or region the applicant advised:

    ‘No these types of courses are mostly done at Diploma level and Pakistan do not have Advance Diploma in Civil Construction Design in whole country.’

    ·In response to the question of the contact the applicant has with family in their home country the applicant advised:

    ‘I contact my family through phone calls and messages.’

    ·In response to the question of the applicant’s community ties in their home country the applicant advised:

    ‘I have involvement in the cultural activities such as feeding and helping the needy at different occasions but mostly at Ramadan, Datar-khan, and EID.’

    ·In response to the question of the applicant’s community ties in Australia the applicant advised:

    ‘I just have a few friends at college but I do not have any strong ties or community involvement in Australia.’

    ·In response to the question of the applicant’s plans, including employment plans at the completion of the courses of study and details of how the courses relate to the applicant’s future plans the applicant advised:

    ‘I plan to go back and start my own construction and interior design firm in Pakistan. For the start and make myself familiar with the work, I will first try to get a job at the reputable companies and then settle myself in one of the shops we have in the city.’

    ·In response to the question of the remuneration the applicant expects to receive in their home country using the qualifications they have gained from their current or proposed study the applicant advised:

    ‘I will be earning from 50000 – 100000AUD equivalant (sic) income in Pakistan as the interior and exterior design is given a lots of consideration. I will incoporate (sic) the Persian style which is very common in Pakistan with the western interior design to create a lively space.’

12. On 11 September 2023 the applicant submitted the following additional documents to the Tribunal:

    ·     Affidavit of Financial Support from the applicant’s parents dated 15 September 2023

    ·     Genuine Temporary Entrant statement dated 11 September 2023

    ·     Copy of applicant’s passport (expiry 15 May 2023)

    ·     Net Worth Certificate by Arslan Mohsan & Co Chartered Accountants dated 9 September 2023

13. The applicant submitted:

    ·In regard to Economic/financial circumstances, he have enough fund to support his stay in Australia and has supported himself and his studies since the visa refusal. He  owns rental property in the form of house and shops in Pakistan generating the income on monthly basis. The family have agricultural land that is leased and the savings can be utilized if needed. As the only male child he will inherit the ancestral property. He comes from a financially self-sufficient family and family members are happy to support him both financially and emotionally. His  parents and sister are in Pakistan, and all live at the same place.

    ·Upon completion of study, he will return to Pakistan to further pursue his career plan. to work in the industry of his interest with updated knowledge and contribute to meeting the country’s huge demand for well qualified trades professionals and simultaneously contribute toward the productivity of the nation. Acquiring an Advanced Diploma of Civil Construction Design from Valley International, will equip him with all the required knowledge and skills which he then plans to implement in Pakistan. The governance system is very stable and there is no mandatory military commitment which could present as a significant incentive not to return

    ·He  has parents and sister with her family in Pakistan. He does not have any other intention to use his student visa to extend his stay in Australia beyond the duration of study. He does not have any records about business ownership, membership of any community organization etc. which could demonstrate his intention to permanently integrate and remain in Australia.

    ·He has changed few courses in Australia in search of the right one. He was unable to understand teachers and started failing the subject. he decided to take a similar course but in a different institution. He then decided to pursue the Carpentry course at NOVA institute. Advanced Diploma of Civil construction design is an advanced level studies that provides in depth knowledge to its students about making their career in Building Industry. It will equip him with design and drafting expertise, project management skills, and a strong understanding of industry regulations, fostering problem-solving abilities and professional networking. This qualification is versatile, applicable across various construction sectors, and can lead to career advancement, entrepreneurial opportunities, and job security in a sector integral to infrastructure development.

    ·He did not breach any condition of student visa and always held a valid COE

14. At the Tribunal hearing the applicant explained that he is employed as a casual cab driver. He used to work in a warehouse but now drives cabs.

15. Asked why he did not continue his studies in carpentry he said he studied it for 5 to 6 months. It was theoretical. Since changing courses in February 2023, he has completed 2 units and is progressing in his studies. The course he is studying is similar to civil drafting. He will be learning to do CAD and other computer designs next year.

16. Discussing his future job prospects he said that all the capitol cities in Pakistan have job opportunities. He has not made enquiries as yet but at the end of the next year, before he completes studies he will try to contact them or visit to apply for a position. He last visited Pakistan in January 2023 when he went to visit his family and friends.

17. Asked if there was any reason he would not to be able to return he said no. He can go back any time. There is no problems there. He is from Lahore in Pakistan. All his family have moved to Lahore, as his father has sold up all assets and built a new house. Father was a teacher in geography. He did not study in Pakistan as study there is not as advanced as  Australia. There are a lot more opportunities if you have an Australian education.

18. He is single, does not have any family in Australia. He is here alone. He has friends only.

    REASONS AND FINDINGS

19. 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 [insert brief description].

20. 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.

21. 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.

22. 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.

23. The applicant, a citizen of Pakistan, is a self employed cab driver since his arrival in Australia in January 2019.

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

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

25. The applicant is  25 years of age.  He is single. He is a citizen of Pakistan. As the applicant is a citizen of Pakistan, there are no military service commitments for the applicant. The applicant has confirmed that in his view there is no civil or political unrest in Pakistan.

26. The applicant, arrived in Australia in 2018. He struggled with his studies and was unsuccessful at completing any courses. At the time of application, the applicant was proposing to undertake a Certificate III in Carpentry. After 6 months he realised that the course would not give him the employment outcomes he desired. At the time of the Tribunal hearing, the applicant was enrolled in an Advanced Diploma in Civil Construction Design. He has advised that he is progressing well and intends to make a career on his return to Pakistan with his qualification. The applicant has confirmed there is no reason why he cannot return to Pakistan.     

27. The applicant has returned to Pakistan to visit his family in January 2023. His family have now moved to Lahore, where they are building a new home. His father has retired from employment as a teacher.

28. In regard to the applicant’s potential circumstances in Australia, the applicant is single, he does not have any family ties in Australia.

29. The Tribunal is satisfied that the applicant is seeking to undertake a course that is consistent with his current level of education and is satisfied the course will assist the applicant to obtain employment or improve employment prospects in his home country.

30. The applicant presented as a truthful witness who did not embellish his claims. As the applicant’s course is due to be completed in November 2024, and the applicant has made enquiries regarding his future prospects in Pakistan with Australian qualifications, the Tribunal accepts that the applicant intends to return to Pakistan at the completion of his course.

31. On the basis of the above, the Tribunal finds, on balance, that the applicant does intend genuinely to stay in Australia temporarily.

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

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

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

35. There is no evidence before the Tribunal that the applicant has an adverse immigration history in Australia or any other countries. Therefore the Tribunal is satisfied there is no evidence before the Tribunal that the applicant does not intend to comply with the conditions of the visa subject to which the visa is granted as required by cl.500.212(b).

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

37. 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.

38. 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

39. The Tribunal remits the applications 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 500.212 of Schedule 2 to the Regulations.

    Lilly Mojsin
    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;

    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.