Raja (Migration)

Raja (Migration) [2018] AATA 5154 (13 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Tafsir Ul Haq Raja
CASE NUMBER:  1620087
DIBP REFERENCE(S):  BCC2015/822432
MEMBER:Michael Ison
DATE:13 November 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 13 November 2018 at 12:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – genuine student – genuine temporary entrant – reasonable academic progress to benefit future career – diploma level courses in unrelated fields – return visits to Pakistan – significant familial ties in Pakistan – application for permanent residence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 65, 359, 376
Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 cl 572.223
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 Immigration and Border Protection to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is Mr Muhammad Tafsir Ul Haq Raja, a 30 year old Pakistani national.
Mr Raja applied for the visa on 13 March 2015. The delegate decided to refuse to grant the visa on 10 November 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
The delegate refused to grant the visa because the delegate was not satisfied that Mr Raja met the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate found that Mr Raja:
·Had enrolled in a series of low value, inexpensive courses in his time in Australia;
·Had not progressed beyond the Vocational Education and Training sector level;
·Had studied in the unrelated fields of commercial cookery/hospitality, information technology, business/management and automotive;
·Was using the Student visa program to maintain residency rather than to progress academically to benefit his future career;
·Did not convince the delegate of the value of his intended courses to his future, particularly given the delegate found, based on information provided by Mr Raja in his application, that Mr Raja already holds a bachelor degree from Pakistan;
·Did not provide evidence of significant personal employment or financial ties to his home country; and
·Applied for the visa that is the subject of this review only three days before his previous visa, indicating that Mr Raja’s recommencement of his studies was to secure a further visa rather than due to a genuine interest in the area of study and overall academic progress.
The hearing of Mr Raja’s review application was initially scheduled for Friday 23 March 2018. On 15 March 2018 Mr Raja’s representative, Mr Rick Gunn of Carina Ford Immigration Lawyers (CFIL) informed the Tribunal that Mr Raja had mental health illnesses and requested an adjournment, providing a doctor’s pre-printed certificate in support of the application that stated Mr Raja “… will be unfit to attend work…” between 7 March 2018 and 4 April 2018.[1]
[1] Tribunal file, folios 54 to 56.
The Tribunal agreed to Mr Raja’s request and rescheduled the hearing to Wednesday 9 May 2018.
On Friday 27 April 2018, Mr Gunn wrote to the Tribunal requesting another adjournment for his client providing four referral letters to different mental health professionals dated 11 April 2018, 19 April 2018 and two referrals dated 24 April 2018. Mr Gunn wrote that Mr Raja had been unsuccessful to date in obtaining an appointment with any of the professionals he had been referred to but was continuing in his efforts to achieve an appointment. Mr Gunn wrote to the Tribunal:
We can forward evidence of the appointment, once scheduled, to the Tribunal upon receipt. Obviously this situation is far from satisfactory as regards the timely processing of the present matter, however at this stage we have concerns about our client’s ability to give a proper account of himself at hearing.[2]
[2] Tribunal file, folios 72 to 76 at folio 76.
The Tribunal agreed to Mr Raja’s request for a second adjournment.
On Tuesday 29 May 2018 Mr Gunn wrote to the Tribunal advising:
For the purpose of the review application however, Dr [name] confirms that the Review Applicant’s illness should not now preclude him from participating in any hearing regarding his immigration status and therefore, we advise that the adjourned Tribunal hearing regarding the refusal of the Review Applicant’s student visa refusal (sic) can now safely be rescheduled.[3]
[3] Tribunal file, folio 81.
The Tribunal rescheduled the hearing of Mr Raja’s application for Wednesday 20 June 2018.
CFIL provided a helpful submission to the Tribunal on Wednesday 13 June 2018 which included a 12 page submission and 22 supporting documents, including a nine page Genuine Temporary Entrant statement from Mr Raja.[4]
[4] CFIL submission dated 13 June 2018, Tribunal file, folios 92 to 124.
Mr Raja appeared before the Tribunal on 20 June 2018 to give evidence and present arguments. Mr Raja was represented by Ms Nina Merlino of CFIL.
Mr Raja told the Tribunal he had read and agreed with what was written in the 13 June 2018 submission.
At the start of the 20 June 2018 hearing Ms Merlino noted errors in the CFIL submission at paragraphs 21, 23, 27, 44, 52 and 56 and an omission from paragraph 37. This submission was of assistance to the Tribunal as some of these corrections were material to the Tribunal’s decision, as is noted below. Where parts of the submission are quoted in this decision the additions suggested by Ms Merlino are shown in square brackets and the deletions suggested by Ms Merlino are shown with strikethrough.
Towards the end of the 20 June 2018 hearing Mr Raja, through Ms Merlino, requested an adjournment of the proceedings. Ms Merlino submitted that Mr Raja was not able to understand all of the Tribunal’s questions and needed the assistance of an interpreter.
The Tribunal asked Mr Raja his reasons for seeking an adjournment. Mr Raja told the Tribunal he could find the words to answer some of the Tribunal’s questions in Urdu, but at times could not find the words in English.
The Tribunal agreed to Mr Raja’s request for an adjournment.
The Tribunal rescheduled the hearing to Monday 25 June 2018, with Ms Merlino’s agreement.
On Friday 22 June 2018 the Tribunal requested in writing that Mr Raja provide specific additional documents to the Tribunal at the resumed hearing.
On the evening of Friday 22 June 2018 Ms Merlino emailed the Tribunal a further seven page submission,[5] including providing some of the documents the Tribunal had requested, which was of assistance to the Tribunal.
[5] CFIL submission dated 22 June 2018, Tribunal file, folios 139 to 142.
The hearing resumed on 25 June 2018. The resumed Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. Ms Merlino attended the resumed hearing.
The Tribunal repeated its introduction from the adjourned hearing, with the interpreter in the resumed hearing interpreting the introduction for Mr Raja. The Tribunal also explained the role of the interpreter in the resumed hearing to Mr Raja and allowed Mr Raja to object to the interpreter if he had any concerns about the interpreter. Mr Raja did not object to the interpreter.
In providing some of the documents requested by the Tribunal CFIL made a series of submissions, including the following:
4.     It is questionable as to whether this [Mr Raja’s recent tax records] is entirely relevant to assessing the genuine temporary entry… criteria… . …
6.     Following the hearing, we have had the opportunity to consider whether or not the issue pertaining to [Mr Raja’s recent] Subclass 187 visa application, which has now been withdrawn, is relevant to the matter at hand. …
8.     We are also of the view that the request provided in writing [by the Tribunal] to us on 22 June 2018 [about Mr Raja’s recent application for a Subclass 187 visa] does not indicate as to why the documents … would be relevant to determining whether this student is a genuine temporary entrant.[6]
[6] Tribunal file, folio 141 (back).
The Tribunal addressed these submissions during the resumed hearing by explaining to Ms Merlino why the Tribunal had requested the documents it had and how the Tribunal viewed that information as relevant to the issues before it.
During the over four and half hour resumed hearing, Ms Merlino asserted, without substantial supporting reasons, that the Tribunal had not complied with the Act when it requested the additional documents. When the Tribunal did not acknowledge this assertion Ms Merlino specifically asked the Tribunal to acknowledge that it had not complied with the Act in this regard.
The Tribunal acknowledged that Mr Raja had only a short time to provide the additional documents requested by the Tribunal and expressed its appreciation to Mr Raja and Ms Merlino for providing the additional documents Mr Raja was able to provide prior to the resumed hearing. As noted above, this additional information was of assistance to the Tribunal.
Section 359(1) of the Act empowers the Tribunal, when conducting a review, to get any information that the Tribunal considers relevant. The Tribunal is not obliged to follow a formal process when exercising this power. This power under s.359(1) is separate to the power the Tribunal has to request information under s.359(2) of the Act.
If the Tribunal chooses to follow a formal process when requesting additional information, such as under s.359(2) of the Act, then the Tribunal must allow a minimum period of time, usually 14 days, for the applicant to provide that information. If the applicant fails to do so then they may lose their right to have a hearing before the Tribunal.
The Tribunal chose to exercise its power under s.359(1) of the Act rather than s.359(2) as the latter would have delayed the conduct of Mr Raja’s review and placed his right to a hearing before the Tribunal at risk (if Mr Raja failed to respond in a timely manner).
There are no adverse consequences for Mr Raja in not providing all documents requested by the Tribunal. The Tribunal was satisfied it obtained the information it considered relevant in this regard from Mr Raja’s oral evidence during the resumed hearing.
The Tribunal asked Mr Raja whether he had read and whether he agreed with CFIL’s submission dated 22 June 2018. Mr Raja told the Tribunal he had not read that submission but Ms Merlino had explained it to him.
The Tribunal handed its copy of the 22 June 2018 submission to Mr Raja and explained the submission and the issues raised within it to Mr Raja. Ms Merlino acknowledged that the Tribunal’s explanation to Mr Raja was reasonable. Mr Raja clarified that in his evidence at the previously adjourned hearing he had said he gets paid double time on Sundays but realised afterwards he gets paid 1.75 times his standard pay rate on Sundays, as reflected in the 22 June 2018 submission. After the Tribunal had explained the submission Mr Raja told the Tribunal he agreed the submission reflected his instructions and evidence.
On 11 September 2018 the Tribunal received an email from the Department with information provided by a third party about Mr Raja and a certificate under s.376 of the Act in relation to the identity of the source of the information. The information was a completed but de-identified Departmental online disclosure form where the author made three negative claims or allegations about Mr Raja.
The Department issued a s.376 certificate in relation to the identity of the source of the information. The name of the source of the information had been removed from the copy of the Departmental form forwarded to the Tribunal. The Tribunal provided Mr Raja with a copy of the s.376 certificate but did not ask him to comment on that certificate as the Tribunal did not give any weight to the identity of the source of the information in its consideration of Mr Raja’s application for review. In this respect, the Tribunal drew a distinction between two items of information in the disclosure form: (1) information that may reveal the identity of the source of the disclosure, which the Tribunal gave no weight, and (2) information that disclosed the allegations made against Mr Raja which the Tribunal considered itself obliged to put to Mr Raja for comment or response.
The Tribunal considered itself obliged to put the claims in item (2) above to Mr Raja as they were potentially adverse to Mr Raja’s application before the Tribunal. The Tribunal informed Mr Raja of the claims made against him in accordance with the process required under s.359A of the Act by letter dated 2 October 2018. The Tribunal invited Mr Raja to comment on or respond to those claims, including providing Mr Raja with a copy of the completed online disclosure form, although extensive information had to be redacted from that form to protect the identity of the source of the information in accordance with the requirements of the s.376 certificate.
The Tribunal’s s.359A letter explained the relevance of the information in the online disclosure form was that allegations one and three could show that Mr Raja is not in Australia temporarily to study but is in Australia to stay and work for as long as he can. Allegation two was stated to be relevant to Mr Raja’s review because it could show that he has potentially breached a condition of his visa which could mean he does not fulfil the requirements of cl.572.223(1A)(b) which is a primary criteria for the grant of the visa.
The Tribunal’s s.359A letter also included a copy of Mr Raja’s movement records dated 15 March 2018. The letter explained the relevance of that information to Mr Raja’s review was that it showed he had returned to Pakistan only three times in eight years which could lead the Tribunal to the view that Mr Raja does not meet cl.572.223(1)(a) on the basis that he is not a genuine applicant for entry and stay as a student because he is well settled in Australia which overrides the incentive he has to return home, such that Mr Raja is using the Student visa program to maintain residence in Australia.
The Tribunal’s letter also explained the consequence of the Tribunal relying on the information in the online disclosure form in allegations one to three or on the information in Mr Raja’s movement records is that the information in each of the documents would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.
On 17 October 2018, Mr Raja, through CFIL, provided a detailed and comprehensive response to the three claims made against him in the online disclosure form but did not respond to the information in his movement record.[7] This response included additional documents to support specific submissions made in response to the allegations. Mr Raja’s response was credible, consistent with his oral evidence, consistent with the documentary evidence before the Tribunal and confirmed for the Tribunal that the claims had no merit and accordingly the Tribunal gave those claims no weight.
Unfortunately, but perhaps not unexpectedly, Mr Raja attached some importance to identifying who he thought the potential source of the information was and then making unhelpful claims about that person. The Tribunal considers those claims unhelpful because they were not relevant to testing the veracity of the claims made against Mr Raja and the claims against the alleged source of the information could be given no weight by the Tribunal because the Tribunal was unable to verify or test that information. CFIL repeated their client’s instructions in this regard, after having made a detailed submission in support of Mr Raja’s application for review on the same point: that because the ‘dob in’ was anonymous the claims against Mr Raja were unable to be tested and should be given little weight by the Tribunal.
[7] CFIL submission dated 17 October 2018, Tribunal file, folios 173 to 182.
CFIL concluded its submission in this regard with the following:
33. The allegation, therefore appears to be driven purely by malice from a disgruntled [deleted] of the Review Applicant, who has a history of violence and is offshore. Therefore, based on the believed motivation behind the allegation, and the wording of the allegations (such as they are) we submit that no weight at all should be attributed to this allegation.[8]
[8] CFIL submission dated 17 October 2018 at p.6, paragraph 33, Tribunal file, folio 179 (back).
This specific CFIL submission caused the Tribunal concern. It appears CFIL are not merely repeating their client’s instructions but have submitted that a third party, as a statement of fact, has a history of violence. No independent evidence has been placed before the Tribunal to support this assertion and the assertion is not qualified as reflecting the instructions of CFIL’s client whereas five of the seven immediately preceding paragraphs of the CFIL submission were qualified in such a manner. The Tribunal has read paragraph 33 of CFIL’s submission as reflecting its client’s instructions only, rather than adopting a literal reading of the submission as CFIL making an unsubstantiated submission of fact about that third party.
The Tribunal pauses here to observe that when considering the anonymous claims made against Mr Raja in the light of Mr Raja’s oral and documentary evidence before the Tribunal, the Tribunal considers the claims against Mr Raja have no credibility such that the Tribunal has deliberately not repeated those claims in this decision. After reading Mr Raja’s response to those anonymous claims, the claims had no impact on the Tribunal’s consideration of Mr Raja’s application for review or the Tribunal’s decision.
It is a matter of concern to the Tribunal that the requirements of procedural fairness imposed on the Tribunal effectively forced the Tribunal to bring these matters to Mr Raja’s attention, causing both Mr Raja and the Tribunal to spend additional time and resources to procedurally address those claims for little or no substantive benefit to, or impact upon, the Tribunal’s consideration of Mr Raja’s application for review. The Tribunal is also aware from Mr Raja’s statement, that the anonymous allegations not unreasonably caused Mr Raja considerable concern.[9]
[9] Mr Raja written statement dated 16 October 2017, at paragraph 4, Tribunal file, folio 177 (back).
The Tribunal respects the need to ensure procedural fairness and makes considerable effort to afford applicant’s a fair hearing and review. It is regrettable though that those requirements require, at least to avoid the not insignificant risk of the Tribunal’s consideration being considered to be affected by jurisdictional error, the Tribunal to expose the applicant to unfounded allegations in a procedural process which delays the Tribunal’s decision and requires both the Tribunal and the applicant to devote additional time and resources to such issues, including exposing the applicant when represented to additional expense.

The Tribunal respectfully suggests, directing these comments to the Department, that a review and perhaps codification of the procedural fairness requirements is overdue to ensure those requirements are actually of benefit to applicants.
Regrettably, due to an administrative error one page of the Tribunal’s three page (plus attachments) 2 October 2018 letter was not sent to Mr Raja via his representatives. This may explain the lack of response in CFIL’s reply for Mr Raja to the information in Mr Raja’s movement record. The Tribunal resent the entire s.359A letter, with an explanation of the administrative error, on 18 October 2018 to Mr Raja via his representatives. The letter set out the relevance of each item of information to Mr Raja’s review and the consequence of the Tribunal relying on each item of information as described above in relation to the Tribunal’s s.359A letter dated 2 October 2018.
On 2 November 2018, Mr Raja, through CFIL, provided a detailed and comprehensive response to the potentially adverse information, including his movement record, in the Tribunal’s s.359A letter dated 18 October 2018.
In this response CFIL relied on its earlier submission dated 17 October 2018 to respond to the information in the anonymous online disclosure form. CFIL made an additional submission in regard to that information, being that the Tribunal was in error in suggesting allegation two could mean Mr Raja may not meet the requirements of cl.572.223(1A)(b) because the visa condition referred to by the Tribunal in its s.359A letter does not and could not apply to Mr Raja’s Bridging B visa. The Tribunal accepts this submission that allegation two against Mr Raja, if proven, could not have led the Tribunal to find that Mr Raja had breached a condition of his current Bridging B visa. As noted above the Tribunal has found the allegations made against Mr Raja, including allegation two, had no merit and none of the allegations were given any weight by the Tribunal.
Mr Raja’s response to his movement records is addressed below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Having regard to Mr Raja’s current proposed course of study, a Certificate IV in Commercial Cookery, the relevant subclass in this case is Subclass 572 Vocational Education and Training sector.
The issue in the present case is whether Mr Raja meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that 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)…
In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction 53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Applicant’s circumstances in their home country
CFIL submitted on behalf of Mr Raja:
21. The Review Applicant’s family, including his wife, continue to reside in Pakistan. The Review Applicant wants to complete his Certificate IV and Diploma to be able to return to Pakistan, reunite with his wife and to provide a financially stable future for the recently wed couple. He misses his wife dearly and cannot wait to start married life together, in Pakistan, having only lived together for a short period of time March – April 2018 [from 3 February 2018 to 1 March 2018] when the Review Applicant returned to Pakistan.
22. The Review Applicant’s wife is currently employed at the Pakistani university and earning a comfortable salary. Together with his salary upon his return, they hope to start a family and buy a house in Pakistan.
23. There are no adverse economic factors or military service commitments which would prevent the Review Applicant from returning to his home country, nor is the political and /or civil unrest that any way (sic) impacts the Review Applicant. He instructs that he [sat the medical tests but] was [not] formerly accepted into the Pakistani military, however he never trained with the Pakistani Army, never joined the Pakistani military and doesn’t intend to join upon his return to Pakistan.
24.   The Review Applicant has significant familial ties in Pakistan, most importantly, his wife of nearly 3 years. He also has his widowed mother, one brother and two sisters, in addition extended family (sic) and friends living in Pakistan.
25.   The Review Applicant, who comes from a reasonably wealthy middle-class family in Pakistan, owning various property and land (see annexure 21) (sic). His family has also invested in a shoe franchise called “Servis” in which his family own the rights to to (sic) sell “Servis” shoes … which the Review Applicant’s widowed mother and siblings live off.
26.   In addition to the above financial ties, the Review Applicant inherited a considerable amount of money after the death of his father, which he intends to invest into his new restaurant if he requires further capital.[10]
[10] Tribunal file, folio 122 – 123 (back). The corrections made are as instructed by CFIL, noted in paragraph 14 above.
These submissions are consistent with Mr Raja’s oral evidence to the Tribunal in which he told the Tribunal that there is no reason that he cannot return to Pakistan and indeed he intends to return to Pakistan after completion of his Diploma because he has been married for three years but spent little time with his wife and his mother is currently unwell.
The Tribunal finds that Mr Raja does not have any military service commitments or exposure to political or civil unrest in Pakistan that would act as a disincentive for him to return home.
Mr Raja also explained why he is studying in Australia rather than Pakistan when he explained the purpose and history of his study in Australia, which is addressed below. The Tribunal finds Mr Raja has genuine reasons for studying in Australia rather than Pakistan.
Mr Raja also told the Tribunal his father passed away in 2008 and he has to take responsibility for his birth family and represent his father for his father’s family. Mr Raja explained in some detail to the Tribunal the current care arrangements amongst his siblings for his mother. Mr Raja owns land in Pakistan and provided the Tribunal with an extract from a land register showing the transfer of ownership of the land to himself.[11]
[11] Tribunal file, folio 92.
Mr Raja’s evidence indicates he has significant financial ties to Pakistan with his inheritance, land ownership and family ownership of the Servis shoes franchise, which Mr Raja told the Tribunal his brother in law manages, including a retail store in Gujarat.
When Mr Raja has completed his studies, he told the Tribunal he will move back into his birth family’s home in Rawalpindi and then after getting a job and increasing his savings he intends to buy a bigger house and have his mother move in with his wife and him.
The Tribunal finds that the above evidence indicates that Mr Raja has familial, social, financial and cultural ties to Pakistan which indicate he has a comfortable life in Pakistan compared to others and this provides some incentive for him to return to Pakistan.
The Tribunal notes that Mr Raja’s financial ties to Pakistan, including his land holdings, have been managed by his family to date or by Mr Raja from Australia and it would appear, on Mr Raja’s evidence, that they could continue to be so managed. The Tribunal finds that Mr Raja’s financial ties to Pakistan do not, of themselves, provide substantial incentive for him to return to Pakistan.
In relation to his familial ties to Pakistan, Mr Raja’s evidence, as is explained in more detail below, is he recently applied for a visa that would have enabled him to stay in Australia and his wife to come to Australia, permanently. In the Tribunal’s view this evidence undermines Mr Raja’s claims of having motivation to return to Pakistan to care for his mother and to represent his (deceased) father in family matters. The Tribunal accepts Mr Raja would like to reunite with his wife who is in Pakistan and start a family, but it is apparent to the Tribunal from Mr Raja’s evidence that Mr Raja is prepared to live abroad, rather than return to Pakistan. Prior to his marriage Mr Raja intended to live in the United Arab Emirates and more recently sought permanent residence in Australia for him and his wife. Therefore, the Tribunal accepts Mr Raja’s familial ties to Pakistan provides some incentive for him to return to Pakistan but gives this evidence only modest weight in Mr Raja’s circumstances, which include recently seeking a permanent visa to remain in Australia.
Applicant’s circumstances in Australia, including the value of their course to their future
Mr Raja arrived in Australia on 18 September 2010 on a Student (Subclass 572) visa to study a Diploma of Information Technology.
Mr Raja lives with his brother and his sister-in-law who are Australian citizens. Mr Raja’s brother and sister-in-law attended both hearings in support of Mr Raja but were not required to give evidence to the Tribunal.
Mr Raja told the Tribunal that his brother is a chef at a restaurant in Crown Casino in Melbourne and that they usually socialise by playing board games, watching television, cooking together or going to the movies. Mr Raja says he has some friends from his studies and plays social soccer and cricket (not as part of an organised competition) but is not a member of any clubs or associations.
Mr Raja did not describe himself as particularly religious but told the Tribunal he prays each day and most Fridays prays at a mosque that is across the road near his home.
Mr Raja told the Tribunal that he has worked on a part-time basis at the Meat & Wine Co at Southbank for the past six years, commencing as a kitchen assistant and having been promoted more than once to his current position of part time line cook. Mr Raja told the Tribunal that he worked mainly on Friday, Saturday and Sundays and described his pay rates and hours of work, including that he would work more hours sometimes during semester study breaks. Mr Raja provided a confirmation of employment from his employer which confirmed his employment since 9 July 2012, current position and provided a list of duties.[12]
[12] Tribunal file, folio 100 (back).
Mr Raja provided his Australian Tax Office Notice of Assessments for 2015 – 2016 and 2016 – 2017 which show that he earned AU$34,063 and AU$36,500 respectively in those years.[13] The Tribunal accepts that this information is consistent with Mr Raja’s oral evidence about his recent employment history in Australia and is also consistent with his work rights under a Student visa.
[13] Tribunal file, folios 140 and 141 (back).
The Tribunal finds that Mr Raja has a very settled and well established life in Australia and having lived in Australia for nearly eight years now with a job that pays him relatively well and which he clearly enjoys, has considerable incentive to remain in Australia to continue that lifestyle rather than return to Pakistan.
Mr Raja told the Tribunal that he can earn more in Pakistan than he can in Australia, at least if and when he gets his own business, a restaurant, up and running. With the lower cost of living in Pakistan Mr Raja’s evidence is that he will have a more comfortable lifestyle in Pakistan than Australia. The Tribunal does not accept this evidence. Mr Raja’s own estimates to the Tribunal, explained below, of his potential income as a chef or manager in a hotel in Pakistan and subsequently as a restaurant owner are both significantly below, in comparative terms, what his tax returns show he is earning in Australia.
The Tribunal finds that Mr Raja’s familial, social and financial ties to Australia provide a strong incentive for Mr Raja to remain in Australia causing the Tribunal concern that Mr Raja is using the Student migration program to maintain ongoing residence in Australia rather than for the genuine purpose of temporary stay and study as a student.
The Tribunal informed Mr Raja about his Provider Registration and International Student Management System (PRISMS) record during the hearing in accordance with s.359AA of the Act. The Tribunal told Mr Raja what PRISMS was, how the information in his report was compiled, that it showed he had completed six Vocational Education and Training sector courses and had enrolments in a further 18 courses cancelled in his nearly eight years in Australia which could indicate to the Tribunal that he had not made reasonable academic progress and is enrolling in inexpensive low level courses to maintain residency in Australia rather than genuinely to study and progress academically. The Tribunal explained this information was relevant to Mr Raja’s application because it could show he was not in Australia to stay temporarily as a genuine student. The Tribunal further explained the consequence of the Tribunal relying on that information was that the information would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review.
Mr Raja requested a short adjournment to consider this information. The adjournment was granted by the Tribunal.
In response to the Tribunal’s disclosure of potentially adverse information under s.359AA, Mr Raja gave evidence that his PRISMS record contained the following errors:
·The two Advanced Diploma of Hospitality Management enrolments cancelled on 21 March 2017 and 15 August 2017 were not his enrolments;
·The Certificate III in Automotive Electrical Technology from 20 August 2012 to 19 August 2013 which PRISMS shows as deferred on 23 February 2014. Mr Raja says he did not defer these studies and completed his Certificates III, IV and Diploma in Automotive sequentially and without a gap;
·He could not recall enrolling in a Diploma of Management in 2012; and
·The Diploma of Information Technology (Networking) Fast Track enrolment from 30 January 2012 to 30 June 2012 was not finished and the dates are different as Mr Raja got a release letter from his education provider on 15 June 2011.
The Tribunal accepts Mr Raja’s evidence in this regard, save that in relation to the last point, Mr Raja’s release letter relates to his enrolment in the Certificate IV in Information Technology (General) from 31 January 2011 to 31 December 2011, not the Diploma of Information Technology (Networking) as PRISMS shows the Certificate IV enrolment was cancelled on 15 June 2011 due to ‘student left provider – transferred to course at another provider’, whereas the Diploma course was in 2012.
The Tribunal discussed with Mr Raja that he used education agents to assist with enrolments and sometimes such agents enrolled students in packages of courses, even though the student thought they were enrolling in only one (the initial) course. This can lead to multiple cancellations where the first course is cancelled or the enrolment varied in some way.
Mr Raja told the Tribunal he was not aware of such practices and seemed confident in his recall of what courses he was (and was not) enrolled in. It was apparent to the Tribunal that Mr Raja has a detailed knowledge of both living and studying in Australia and of his current and proposed future course under his current education provider. Mr Raja has studied with several different education providers and has had both positive and very negative experiences, demonstrating to the Tribunal he has considerable experience and understanding of the Australian education system for overseas students.
CFIL submitted that Mr Raja had completed the following courses:
·Certificate IV in Business Administration – completed February 2012;
·Diploma of Business – completed October 2012;
·Certificate III in Automotive (Electrical Technology) – completed October 2013;
·Certificate IV in Automotive (Mechanical Overhauling) – completed May 2014;
·Diploma in Automotive Technology – completed January 2015; and
·Certificate III in Commercial Cookery – completed May 2018.
The Tribunal discussed Mr Raja’s study history, current and proposed courses in detail with Mr Raja.
Mr Raja clarified in his statement dated 13 June 2018 that he had not completed a Bachelor degree in Pakistan:
I wish to clarify that in my student visa application lodged in March 2015, I accidentally stated, due to administrative error, with the drop-down box, that I had completed the bachelor. This was an error as I never completed the course.[14]
[14] Tribunal file, folio 117.
The Tribunal accepts Mr Raja’s evidence in this regard which lessens the weight the Tribunal gave to Mr Raja’s academic history in his own country as part of the Tribunal’s assessment of Mr Raja’s academic progress in Australia.
Mr Raja provided certificates to the Tribunal confirming completion of the above courses[15] apart from the Certificate III in Commercial Cookery in which all classes had finished but at the time of hearing some of Mr Raja’s work was still being assessed. The Tribunal accepts this evidence.
[15] Tribunal file, folios 101 to 108, including Mr Raja’s academic transcripts.
Mr Raja confirmed he is now studying a Certificate IV in Commercial Cookery which is due to be completed on 11 November 2018 and has been offered enrolment in a Diploma of Hospitality Management which is due to be completed on 19 May 2019. Mr Raja provided documentation to the Tribunal confirming this.[16]
[16] Tribunal file, folio 109.
In a written statement to the Tribunal dated 2 November 2018, Mr Raja stated:
28. I am currently completing my Certificate IV in Commercial Cookery followed by Diploma of Hospitality. My course will expectedly finish in May 2019. (sic)
29.After I finish my course, I intend on returning back to Pakistan to commence life with my wife and family. My mother is also by herself, as my younger brother is working full time (shift work) and my younger sister is studying medicine.[17]
[17] Mr Raja written statement dated 2 November 2018, Tribunal file, folio 199 (back).
Mr Raja told the Tribunal the Diploma of Hospitality Management will be his last course in Australia. Mr Raja explained he has learned about dietary plans in the Certificate III, the Certificate IV was more about the management side and with his Diploma of Management he feels he can master the management side. Mr Raja told the Tribunal in his six years with Meat & Wine Co he has learned a lot of practical and management skills having progressed from kitchen hand to ladder chef, to cook, to grill cook to his current role of lead line cook organising all the line cooks and leading the Meat & Wine Co’s lunch and dinner services on the shifts he works.

Mr Raja feels the Diploma of Hospitality Management will teach him hospitality specific management skills. Mr Raja was able to refer to specific units of study he had completed and intends to study. The Tribunal found Mr Raja’s evidence describing his courses and the knowledge he had acquired generally credible, even though he described them in very broad terms at best.
The Tribunal discussed with Mr Raja why he needed to study the Certificate IV and Diploma given his extensive practical work experience in a kitchen. Mr Raja told the Tribunal that having the qualifications will be important to his initial aim of working for a large hotel in Pakistan and will expand his knowledge of cuisines and menu planning. The Tribunal accepts this evidence.
In discussion with the Tribunal Mr Raja said he was not able to do the same courses in Pakistan because the courses in Pakistan are generally very short term (three months) and focus more on the tourism and hospitality side rather than the cooking side. The Tribunal accepts this evidence.
Mr Raja also provided a detailed explanation of his study history in his nine-page statement to the Tribunal dated 13 June 2018.[18]
[18] Tribunal file, folios 113 to 117.
Mr Raja said he discontinued his initial information technology studies after six months because he was struggling to adjust to the new study environment and method in Australia. Mr Raja stated:
The International Student Affairs department at Holmesglen were very understanding of my situation and let me choose a new provider where I could adjust more easily. They suggested a few other courses which may be easier for me to understand (including a Certificate IV in Financial Services and Diploma of Business, based upon my high school and partly completed Bachelor of Commerce in Pakistan).[19]
Mr Raja switched his career focus to business. He completed his Certificate IV in Business Administration and his Diploma of Business, at the end of which:
After completing my Business Diploma, I felt that I was equipped with the management skills that I was wanting, however I didn’t feel that it was the ultimate career path for me; I wanted a more practical and hands on career.[20]
Mr Raja switched his career focus to automotive. He commenced and completed his automotive studies, as noted above, between November 2012 and January 2015.
[19] Tribunal file, folio 117 (back).
[20] Tribunal file, folio 117 (back).
Mr Raja then switched his career focus for a third time to cooking and hospitality. He explained his change to a fourth field of study in his 13 June 2018 statement:
After finishing the Certificate IV in Automotive Technology, I started to apply for jobs in Pakistan and even started to look for local part time opportunities available in Australia to gain experience in my relevant field. At the time, I only had experience in from (sic) the workshop classes which I attended during study period of the course.
I found it extremely difficult to find a job in Automotive Manufacturing industry in Pakistan. It was a very competitive industry, as most candidates applying had a stronger background of engineering, with experienced (and referenced) in Automotive Manufacturing. I didn’t have this and couldn’t compete. …
Moreover, working as a local mechanic was not a good option for me because the labour cost in Pakistan is very cheap and after getting qualified internationally I would not be making enough to meet my end needs and recover my cost of the education I gained in Australia. I knew that I needed a new career pathway that was still hands on, however would guarantee me employment when I returned.
Pursuing Career in Hospitality
After going through a lot of stressful time as a fresh graduate I was very down in my morals. This is the time when my brother looked upon my situation and started to advise me to change my career to be “chef”. It was then that I started me (sic) to realise my hidden talent which I was ignoring throughout the time falsely chasing a career which have no stable outcome in the near future in Pakistan.
Mr Raja went on to explain:
After discussing my situation with my brother, I decided to enrol in hospitality courses to become qualified Chef (sic) with the aim of working in a hotel restaurant in Pakistan.
After receiving an Australian qualification, together with experience with an established international restaurant in Australia, I realised that I could confidently find role (sic) in international hotel chain in Pakistan as a Chef.[21]
The Tribunal did not find Mr Raja’s explanations convincing. The Tribunal accepts that Mr Raja may have had difficulty adjusting to life and study initially in Australia leading to the first change in his field of study. However, studying business and then automotive were both choices Mr Raja made and it was only at the end of those courses that he says he realised they did not offer the career he sought. The Tribunal did not find Mr Raja convincing in this regard. At best, his changes in field of study reflect that both prior to enrolling and when studying those courses, Mr Raja did not fully explore the benefit of those courses to his future career plans and options. Making reasonable allowance for changes to plans, the Tribunal finds that Mr Raja changing his field of study four times in the circumstances Mr Raja explained are not the actions of a student who intends genuinely to stay in Australia temporarily, particularly with the experience and knowledge of studying and living in Australia Mr Raja had even after the completion of his studies in his second field of study (business). The Tribunal finds that Mr Raja’s academic history and circumstances indicate he is using the Student visa program to maintain residence in Australia for as long as possible rather than genuinely to progress academically and stay only temporarily.
Mr Raja explained why he chose to continue to study in Australia rather than Pakistan and expects to earn AU$15,600 to AU$21,600 in Pakistan as a chef with a managerial role, taking advantage of both his hospitality and management qualifications gained in Australia. At the lower end of the range this is less than half of what Mr Raja is earning in Australia working mainly part time.
[21] Tribunal file, folio 116 (back).

100. It then took Mr Raja over three years to complete the one-year Certificate III in Commercial Cookery, having first enrolled in April 2015. Mr Raja explained those circumstances to the Tribunal as follows:
·His mother developed a hernia and needed urgent medical attention which it was his responsibility to organise so he returned to Pakistan on 30 July 2015;
·Mr Raja informed his education provider before leaving Australia;
·Whilst in Pakistan Mr Raja’s mother requested he marry his long-term fiancé, which extended his stay in Pakistan to organise his wedding and get married;
·He returned to Australia on 3 September 2015 by which time he had missed some of his studies causing his education provider to require him to start again;
·Mr Raja was then close to completing the Certificate III when the delegate refused his Student visa application on 10 November 2016, causing his education provider to cancel his enrolment;
·Mr Raja then enrolled with a new education provider to try and complete his Certificate III. However, his new education provider lost his logbook of work, cancelled many classes at short notice and would not grant him his Certificate III unless he paid more fees, which he refused to do. Eventually, his education provider cancelled his enrolment and issued a statement in August 2017 acknowledging completion of only two units;
·Mr Raja then enrolled with a new education provided and completed his Certificate III, as noted above, in May 2018.

101. Mr Raja’s explanation is not consistent with his PRISMS record but the Tribunal acknowledges that the PRISMS database relies on information uploaded by education providers and is not always accurate. The Tribunal gives Mr Raja the benefit of the doubt and accepts that two of his Certificate III in Commercial Cookery course cancellations were outside his reasonable control.
102. Mr Raja provided the Tribunal with copies of text messages from his second Certificate III education provider that cancelled many classes at short notice and also a statement from his brother to confirm aspects of Mr Raja’s issues with and treatment by that education provider.[22] The Tribunal accepts this evidence of the difficulties Mr Raja had with his second Certificate III in Commercial Cookery education provider. However, based on Mr Raja’s evidence to the Tribunal, the Tribunal finds that the initial cancellation of his Certificate III studies that was the initial cause of this unfortunate chain of events was within Mr Raja’s control.
[22] Tribunal file, folios 93 to 99 and 112 to 113 (back) respectively.
103. Mr Raja set out in his statement and also told the Tribunal his plans for when he returns to Pakistan, being to work initially in a hotel as a chef, hopefully with management responsibilities, eventually leading to opening his own restaurant.
104. Mr Raja told the Tribunal when he gets to open his restaurant in Pakistan he intends to offer more South African and Australian barbecue and grill style cuisine, similar to what is offered at Meat & Wine Co, blended with traditional Pakistani cuisine.
105. The Tribunal discussed Mr Raja’s plans in detail with him. Mr Raja explained to the Tribunal the research he has undertaken for the location of his restaurant, his expected staffing model, capital requirements and cash flow. Mr Raja’s evidence was credible but again, very broad. Mr Raja is initially forecasting an operating profit of PKR1,320,000 per annum which is equivalent to AU$13,940.[23] Mr Raja did state that he expects this to grow over time and it is subject to a number of variables. Based on Mr Raja’s initial planning for his restaurant, it is evident though that he is earning considerably more in Australia, even if cost of living differences between the countries are allowed for, than he will in Pakistan.
[23] Exchange rate of AU$1 to PKR94.69 taken from the internet on 20 July 2018 with data provided by Morningstar.
106. The Tribunal asked Mr Raja about his earlier plan to open a restaurant in Dubai with his brother and read him part of his undated statement in April 2015 to the Department:
I take immense pride in my work and on the basis of experiences garnered over these years I can confidently state that I am no longer unsure of my career pathway and I can clearly see myself as a professional cook for the next few years. This decision is also hugely influenced by the fact that my brother works as a professional Chef and we as a family have a strong hospitality industry connection in the UAE as well. As experienced personnel in the chosen field my brother and I plan to set up a restaurant in Dubai together.[24]
[24] Department file, folio 54.

107. Mr Raja told the Tribunal that at the time in 2015 when the Department asked him for a statement his brother and he had thought about opening a restaurant in Dubai but did not have a plan to do that. Mr Raja said he was single at the time of his statement, subsequently married and with his wife in Pakistan wants to return to live with her.
108. The Tribunal accepts that plans can change over time and Mr Raja’s August 2015 marriage was a significant life event that could credibly cause a change of plans.
109. Mr Raja told the Tribunal his brother became an Australian citizen in September 2014, whilst Ms Merlino thought it may have been April 2015. The Tribunal discussed with Mr Raja why his brother, who had only recently become an Australian citizen with a job as a chef at a restaurant in Crown Casino, would wish to relocate to Dubai to set up a restaurant with him. Mr Raja responded again that it was not a firm plan but that in any event it was not intended his brother would relocate, just that he would help Mr Raja set up the new restaurant and then return to Australia. When the Tribunal asked Mr Raja about how long his brother would spend in Dubai Mr Raja replied that they did not have a timeline as part of their plan.
110. Ms Merlino submitted in her closing submissions that Mr Raja’s written statement does not specify his brother’s involvement and it may have been intended to be from Australia as the statement does not say Mr Raja’s brother would have to leave Australia to assist Mr Raja. This submission was not consistent with Mr Raja’s evidence to the Tribunal and therefore was given no weight by the Tribunal.
111. The Tribunal discussed with Mr Raja what impact his mental health illnesses had on his study. Mr Raja told the Tribunal he was very stressed about not knowing the outcome of his application for review before the Tribunal and had been unwell for six to eight months from October or November 2017.
112. Mr Raja explained to the Tribunal in his evidence and statement the difficulty he had in getting appointments with mental health professionals but that he was now on medication, which had recently been increased in dosage, he has another appointment soon and is feeling much better in himself such that he is confident he can now complete his studies.
113. Mr Raja also told the Tribunal he had a similar stressful experience between his application for the Student visa in March 2015 as it took the delegate until November 2016 before a decision was made on Mr Raja’s application. Mr Raja found that 20-month delay, not knowing whether he would be able to complete his studies or not, also very stressful.
114. The Tribunal accepts that Mr Raja’s mental health conditions have had an adverse impact on his ability to study effectively at times, but the Tribunal also finds the evidence before it of those mental health conditions does not fully explain what the Tribunal considers to be Mr Raja’s poor academic record in Australia. On Mr Raja’s evidence his mental health conditions affected his study between March 2015 and November 2016 and from October or November 2017 to just before the hearing in June 2018 which is just over two years of his eight years in Australia.
115. Mr Raja had been in Australia for nearly eight years at the time of hearing and has completed six courses, all at the Vocational Education and Training sector level, meaning he has completed approximately four years of study. Allowing for the errors Mr Raja says are in his PRISMS record, Mr Raja has still had at least ten course enrolments cancelled during that time.
116. The Tribunal does not accept, nor does Mr Raja suggest, that all of these cancellations were outside his control. He has changed his field of study four times: from information technology to management to automotive to cooking and hospitality, causing some of the cancellations. He also stayed longer than expected in Pakistan to be married causing another cancellation, a situation the Tribunal finds he could have relatively easily better managed.
117. Of concern to the Tribunal is that it was not until the end of his business studies (two courses) and the end of his automotive studies (three courses) that Mr Raja realised that those qualifications would not provide him with the career he desired. This reveals a lack of planning and insight that caused the Tribunal to find above that Mr Raja is not a genuine temporary entrant into Australia to study and is using the Student visa program to maintain residency in Australia.
118. Adding to these concerns is that it has taken Mr Raja over three years to complete his most recent one-year Certificate III course in circumstances that can only be described as extraordinary, involving three different education providers, a lack of recognition for prior learning and presumably considerable wasted expense for Mr Raja, all of which Mr Raja could have avoided if he had better managed his initial enrolment.
119. Mr Raja also has changed his plans for using the qualifications he is currently and intends to study for. His 2015 statement of intention to the Department to support his application for the Student visa under review reflected, on Mr Raja’s evidence, more an idea than a genuine intention causing the Tribunal concern that Mr Raja has not learned from past mistakes in thoroughly researching how he can use the qualifications he has studied, is studying and proposes to study further, back in Pakistan or another country.
120. Balanced against these concerns the Tribunal accepts that Mr Raja has considerable recent and relevant work experience to support his current field of study and also has greater professional support in the form of his brother who is a chef and with his 2015 marriage has greater reason to be more mature about his plans and study.
121. The Tribunal finds that Mr Raja appears well settled in Australia living with his brother and sister in law, has well established social connections here and is earning a salary that is considerably greater on his own evidence than what he could earn in Pakistan either as an employee or running his own restaurant. These considerations indicate to the Tribunal that Mr Raja has significant incentive to remain in Australia.
122. The Tribunal finds that Mr Raja’s study history, particularly the regular changes to his field of study, his broad and changing plans or purpose of study, his comparatively significant income and the presence of close relatives in Australia reveals that he is not in Australia genuinely temporarily to study but on balance is using the Student visa program to circumvent the intentions of Australia’s migration program by extending his stay in Australia for what appears to the Tribunal to be as long as possible.
Applicant’s immigration history
123. The Tribunal asked Mr Raja whether he had applied for any other visa since the delegate’s decision on 10 November 2016. Mr Raja told the Tribunal he applied for a Regional Sponsored Migration Scheme (Subclass 187) visa on 14 February 2018. The Subclass 187 visa is a permanent visa.
124. This application was not referred to in CFIL’s 14 pages of written submissions to the Tribunal dated 13 June 2018 or Mr Raja’s nine page statement of the same date.
125. The Tribunal discussed with Mr Raja why he had applied for a Subclass 187 visa and what the outcome of that application had been.
126. Mr Raja told the Tribunal that in July 2017 he took his brother’s car to Quick Auto Repairs McIntyre Road, Sunshine to be serviced and fixed and when his brother collected the car the owner, Mr Muhammad Awais, said he had another workshop in Ballarat and was looking for an automotive mechanic and already had an advertisement on the gumtree website. Mr Raja told the Tribunal his brother told Mr Awais that Mr Raja was a qualified mechanic and Mr Awais asked Mr Raja’s brother to send in Mr Raja’s resume. The Tribunal did not have the benefit of Mr Awais being available to give evidence or providing a statement to the Tribunal.
127. Mr Raja’s evidence is he dropped in his resume to the workshop and then in October 2017 was interviewed and given a work trial on the same day. Mr Awais was satisfied with Mr Raja’s performance and offered him the position. According to Mr Raja’s evidence the position was a full time permanent position of an automotive mechanic in Ballarat on a salary of AU$52,000 to AU$54,000 per annum.
128. Mr Raja’s evidence was that he told Mr Awais he was on a Student visa and could only work 20 hours per week. He said Mr Awais then said he would speak to a migration agent and subsequently advised Mr Raja he would be prepared to sponsor him for a Subclass 187 visa.
129. Mr Raja consulted his own migration agent who said under s.48 of the Act he needed to leave Australia to make application for the Subclass 187 visa because his substantive Student visa had been refused and he was on a Bridging visa and therefore could not be in Australia when he made the application.

130. Mr Raja’s evidence is that he left Australia on 3 February 2018 and the application was made whilst he was in Pakistan. Mr Raja says the agent also told him he could include his wife in the application because it did not cost any extra to do so.
131. Mr Raja said a number of mistakes were made with the application and the agent promised to give him access to his immigration account so he could fix them online. Eventually Mr Raja got access to his immigration account and was shocked by the number of mistakes, to the point where Mr Raja felt the application did not look genuine.
132. Mr Raja returned to Australia on 1 March 2018.
133. Mr Raja says he then approached another migration agent through his brother. Mr Raja’s evidence to the Tribunal is this second migration agent said the first agent was not a properly registered or authorised migration agent and told Mr Raja the application was illegal and would have to be withdrawn otherwise it could have an adverse impact on Mr Raja’s future.
134. On 24 April 2018 Mr Raja instructed the second agent to withdraw his application for a Subclass 187 visa.
135. The application was withdrawn on 26 April 2018 and Mr Raja received confirmation of that withdrawal on 27 April 2018, a copy of which was provided to the Tribunal.[25]
[25] Tribunal file, folios 139 to 140 (back).
136. Mr Raja told the Tribunal he was not really interested in a full-time position as an automotive mechanic but applied for the Subclass 187 visa as he had no other option.
137. Mr Raja told the Tribunal he was aware it was a full-time position and did not think he could do the position part time. When the Tribunal asked Mr Raja why he was applying for a full time position he said that he didn’t know it was full time until after he dropped off his resume, he only found that out after the trial.
138. Mr Raja said his intention in applying for the job was to get experience but he had no intention of becoming an automotive mechanic. He said he went for the trial in the last week of October 2017 and worked three to four hours that day and then went back twice more in early November 2017 on his own initiative and worked three to four hours each time.
139. The Tribunal sought to understand from Mr Raja what position he thought he was applying for when he dropped his resume off in August 2017 but Mr Raja described the application and interview process again.
140. The Tribunal asked Mr Raja if he could do the position part time would he have taken the job. Mr Raja replied that he did not have any intention to work part time or full time he just wanted to gain experience.
141. This answer did not make sense to the Tribunal so the Tribunal asked Mr Raja how he was going to gain experience. Mr Raja replied that in his Certificate III and Certificate IV studies in automotive there was not much workshop work, whereas in the field working mechanics get to work on different cars with different engines and suspensions.
142. The Tribunal continued to discuss the reasons for Mr Raja applying for the job and how those actions fitted with his plans at the time. Mr Raja told the Tribunal he saw the job as an opportunity to refresh his automotive knowledge and to gain experience and the only way he could do that was to apply for the Subclass 187 visa and if he had got the visa then he could have worked with Quick Auto Repairs.
143. The Tribunal raised with Mr Raja that this would have meant he had to give up his job with Meat & Wine Co. Mr Raja responded that he did not want to give up that job and it would only have happened if he got the Subclass 187 visa, which did not happen, so he is very happy and now just wants to complete his studies, get a job as a chef and open a restaurant.
144. The Tribunal did not find Mr Raja to be a convincing or credible witness on the circumstances surrounding the application and withdrawal of his application for the Subclass 187 visa.
145. Mr Raja did not convincingly explain why he was applying for an automotive mechanic position in late 2017 when his previous evidence to the Tribunal is that he realised upon completion of his automotive studies in January 2015 that automotive did not offer a viable career pathway for him.
146. Mr Raja did not clearly explain how applying for a subclass 187 visa to be an automotive mechanic in Ballarat was consistent with his evidence that since March 2015 his passion and focus has been on becoming a qualified and experienced chef and that he had clear plans to work in a hotel in Pakistan and eventually open his own restaurant.
147. The Tribunal accepts that Student visa holders can have more than one plan and can apply for other visas and still be a genuine temporary entrant into Australia to study. The Tribunal’s role is to assess Mr Raja’s genuine intention at the time of the hearing.
148. Ms Merlino submitted in closing submissions that Mr Raja was honest and frank about the circumstances of his Subclass 187 application and withdrawal and the Tribunal should give his evidence weight as a result. The Tribunal has found Mr Raja was not credible or open in his evidence explaining the circumstances of his Subclass 187 visa application and withdrawal and therefore gives Ms Merlino’s submission in this regard little weight.
149. Ms Merlino also submitted that regardless of Mr Raja’s intentions or advice at that time what the Tribunal must decide is Mr Raja’s intentions now. The Tribunal accepts this submission in part, noting that when discerning Mr Raja’s present intention the Tribunal must consider all of Mr Raja’s circumstances, including his past circumstances. The fact that Mr Raja made the application for the Subclass 187 visa in February 2018 is not a mistake that occurred in the distant past, but is something that Mr Raja recently pursued and pursued over a period of months. The Tribunal makes no adverse finding against Mr Raja because he applied for a Subclass 187 visa in February 2018, as was his right, but the circumstances of that application and the consistency of Mr Raja’s evidence are relevant matters for the Tribunal to consider.
150. Of concern to the Tribunal is that the position underlying that application was to be a full-time automotive mechanic, which would have been a fourth major change of career direction for Mr Raja since he has been in Australia and a radical departure from the plan he had submitted to the Department and also more recently to the Tribunal he wants to put in place.
151. Ms Merlino submitted there is substantial evidence before the Tribunal that Mr Raja is a genuine temporary entrant in Australia to study with incentive to return to Pakistan to be with his wife. In Ms Merlino’s submissions Mr Raja is the victim of poor advice from a person representing themselves as a migration agent when they were not registered with the Migration Agents Registration Authority which caused him to withdraw his application despite seeking help for his mental health at the time. Ms Merlino submitted that Mr Raja would have withdrawn his application for a Subclass 187 visa earlier but had a lot going on in his life at that time.
152. The Tribunal accepts that Mr Raja’s mental health conditions and the subsequent alleged poor migration advice he received, may have adversely impacted on Mr Raja’s decision making in relation to his application for a Subclass 187 visa.
153. However, on Mr Raja’s evidence he sourced the job opportunity as an automotive mechanic through his brother in July 2017, submitted his resume to work as an automotive mechanic in August 2017, attended for an interview to be employed as an automotive mechanic and then undertook work on a trial basis as an automotive mechanic in October 2017. Mr Raja’s decision to pursue a position as an automotive mechanic occurred, on his own evidence, at a time when he did not have mental health conditions. All of the actions referred to above also occurred on Mr Raja’s evidence before the allegedly unregistered person was involved or gave any advice.
154. On his own evidence it appears to the Tribunal that Mr Raja formed an intention to obtain a Subclass 187 visa to remain permanently in Australia and to bring his wife to Australia, as his wife was part of his application, and put that intention into action by taking the above steps which led to him applying for the permanent visa and relying on the advice of the allegedly unregistered person in February 2018.
155. If Mr Raja had been applying for a Subclass 187 visa to work as a chef, or in hospitality, or a similar role then the Tribunal would have had less concerns about this evidence as Mr Raja would have been working in the field he has given evidence is his passion, that suits him and is the reason he needs to study in Australia until May 2019 after already having been in Australia for nearly eight years.
156. Mr Raja’s actions are not consistent with his evidence to the Tribunal. The Tribunal finds that Mr Raja’s actions of applying for and being offered a position as a full time automotive mechanic causes the Tribunal to doubt the genuineness of his commitment to his most recent study and career plan to work in hospitality and to open his own restaurant in Pakistan. This causes the Tribunal to question the value of that study to his future and his genuineness as a temporary entrant to study in Australia.
157. Mr Raja’s evidence about applying for a visa that would have entitled him to remain in Australia permanently also causes the Tribunal to doubt the genuineness of his evidence of the compelling need for him to return to Pakistan to care for his widowed mother or to represent his deceased father in family matters. The Tribunal accepts that Mr Raja still has some motivation to return to Pakistan. Once Mr Raja withdrew his application for the Subclass 187 visa his wife could not join him in Australia and, in the absence of her being granted another visa which on Mr Raja’s evidence is not within his or her contemplation, he now needs to return to Pakistan for them to be reunited.
158. The Tribunal also explained to Mr Raja that the Australian government keeps records of all entries into and departures from Australia. The Tribunal explained in Mr Raja’s case his movement records reveal that he has returned to Pakistan three times in the nearly eight years he had been in Australia at the time of hearing: in 2013, 2015 and 2018. Mr Raja has returned to Pakistan only once since being married in Pakistan in 2015.
159. Mr Raja told the Tribunal he stays in touch every day with his wife and birth family in Pakistan by using social media and telephoning particularly his wife directly. The Tribunal accepts that returning to Pakistan every two or three years and staying in touch with his wife and family on a daily or regular basis through social media and by telephone is evidence that Mr Raja is maintaining his matrimonial and family relationships in Pakistan which is consistent with his evidence of his intention to return to Pakistan.
160. Mr Raja told the Tribunal in relation to the rest of his immigration history that his father worked in the Middle East and Mr Raja spent much of his childhood there and also travelled with his family to England and Germany. Mr Raja could not recall encountering any adverse immigration issues during these travels.
161. The Tribunal accepts this evidence.
162. However, as the information in Mr Raja’s movement records could be perceived – in the absence of considering that information in the context of the written and oral evidence before the Tribunal - to be potentially adverse to his application, even though the Tribunal did not find that information to be adverse, the Tribunal wrote to Mr Raja on 2 October 2018 in accordance with s.359A of the Act, as noted above. Due to an administrative error with the 2 October 2018 letter, explained above, the Tribunal re-sent the s.359A letter to Mr Raja on 18 October 2018. The contents of the letter are set out above.
163. Mr Raja, through CFIL, responded in detail to the information in his movement records in a statement to the Tribunal dated 2 November 2018. Mr Raja’s statement provided a chronological explanation of his movements between Australia and Pakistan and his studies at the relevant times.
164. In their covering letter, CFIL also made separate submissions in support of Mr Raja’s statement, including providing the Tribunal with a helpful summary in table form of Mr Raja’s trips to Pakistan, his mother and sister’s visit to him in October to December 2013 overlaid against the timing of Mr Raja’s studying commitments. CFIL’s submission addressed Mr Raja’s treatment for mental health issues in Australia, issues with a Bridging B visa application where the Department allegedly made an error processing that application and then granted Mr Raja a Bridging B visa that was only valid for a short period of time which limited the time Mr Raja could spend in Pakistan during his 2018 visit and provided supporting documents in relation to the Bridging B visa issues.
165. Mr Raja’s statement is consistent with his oral evidence, noted above, subject to one clarification below, and the Tribunal accepts Mr Raja’s statement about his movements between Australia and Pakistan.
166. In his statement Mr Raja states:
25.I then travelled to Pakistan between 3^rd February to 2^nd March 2018 to spend time with my wife and family.[26]
[26] Tribunal file, folio 99.

167. As noted above, Mr Raja’s oral evidence to the Tribunal was that the person he was obtaining migration advice from at the time advised him that he needed to go offshore to make the application for the Subclass 187 visa. The Tribunal notes that there is no reference in Mr Raja’s most recent four page statement to the Tribunal, or in CFIL’s most recent six page letter of submissions, to this evidence or Mr Raja’s Subclass 187 visa application or this advice being even a part of the reason for Mr Raja returning to Pakistan in early 2018.
168. The Tribunal accepts there may have been more than one motivation for Mr Raja to return to Pakistan in early 2018. When the Tribunal discussed Mr Raja’s Subclass 187 visa application with Mr Raja, he told the Tribunal he had planned to go on holidays (back to Pakistan) at around that time anyway. The Tribunal accepts that Mr Raja did spend time with his wife and family when he returned to Pakistan in 2018. Therefore, the Tribunal finds that Mr Raja’s statement is not inconsistent with his oral evidence about his return to Pakistan in early 2018 as Mr Raja may have had more than one reason or motivation to return to Pakistan at that time.
169. As noted above, the Tribunal accepts Mr Raja’s statement about his movements between Australia and Pakistan and makes no adverse findings against Mr Raja in relation to the information in his movement records.
170. However, when considering Mr Raja’s immigration history in the context of all of his circumstances, including the higher income he can earn in Australia, the regular changes in his field of study and a recent application for a permanent visa in a field he had previously eschewed and that is not consistent with his current study or stated future career plans, the Tribunal found that Mr Raja’s incentive to stay in Australia for as long as possible rather than genuinely temporarily is stronger than his incentive to return to Pakistan.
171. There is no evidence before the Tribunal that apart from the visa application under review, Mr Raja has had a visa refused or cancelled or otherwise had an adverse immigration finding in Australia or overseas.
Any other relevant information
172. Ms Merlino made closing submissions which have been addressed above. Mr Raja did not bring any other information to the attention of the Tribunal.
Conclusions
173. Having considered all of Mr Raja’s circumstances, the Tribunal finds that Mr Raja is not a genuine temporary entrant in Australia genuinely to study for the reasons set out above, which in summary include:
·While Mr Raja says there is no impediment to him returning to Pakistan, he appears to have only modest incentive to return as his financial ties to Pakistan can be managed by family or from Australia and his stated desire to care for his mother is not consistent with his recent, if ill-fated, application for a visa to remain in Australia permanently, an application which if successful would have enabled him to reunite with his wife in Australia rather than returning to Pakistan to do so;
·The presence of Mr Raja’s wife in Pakistan provides some incentive to return to Pakistan, but it is clear to the Tribunal from Mr Raja’s evidence that he does not see it as necessary to return to Pakistan to be reunited with her, leading the Tribunal to give this consideration only modest weight;
·Mr Raja has a strong incentive to maintain residency in Australia where on his own evidence he is well established, has close family, extensive social connections and earns significantly more than he will earn in Pakistan either as an employee chef or manager or operating his own restaurant;
·Mr Raja does not have the academic record of a genuine student having completed only four years of study at the relatively inexpensive Vocational Education and Training sector level in over eight years in Australia with 18 course cancellations, at least 10 of which were within Mr Raja’s reasonable control;
·Mr Raja has changed the focus of his studies four times from information technology to management to automotive to cooking and hospitality in circumstances the Tribunal did not find convincing for the reasons noted above and in February 2018 applied for (but subsequently withdrew) a permanent visa to be a full time automotive mechanic undermining the credibility of his evidence that since March 2015 his passion and focus has been on becoming a qualified and experienced chef and that he had clear plans to work in a hotel in Pakistan and eventually open his own restaurant there. This caused the Tribunal to doubt the credibility of his future plans and the value of his current and proposed future studies to his future career, leading the Tribunal to find that Mr Raja is using the Student visa program to circumvent the intentions of Australia’s migration program; and
·Mr Raja was not convincing in explaining the circumstances that led to him accepting a full time position to be an automotive mechanic in Ballarat in late 2017 and applying for a permanent visa to remain in Australia in early 2018, causing the Tribunal to doubt his evidence in relation to his current study and future plans. This led the Tribunal to the view that Mr Raja is using the Student visa program to maintain residence in Australia rather than to study, progress academically and return to Pakistan or another country.

174. On the basis of the above, and having considered Mr Raja’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that Mr Raja intends genuinely to stay in Australia temporarily. Accordingly, Mr Raja does not meet cl.572.223(1)(a).
175. The Tribunal has found Mr Raja does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that Mr Raja does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests Mr Raja meets the prescribed criteria for that subclass. As the Tribunal has found that Mr Raja does not meet a criterion for the grant of a Student visa, it must affirm the decision under review.
DECISION
176. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Michael Ison
Senior Member

[2018] AATA 5154

13 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Intention

Statutory Construction

Natural Justice