Riyadh (Migration)

[2021] AATA 5528

Riyadh (Migration) [2021] AATA 5528 (3 December 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Jobair Ahmad Riyadh

CASE NUMBER:  2004560

HOME AFFAIRS REFERENCE(S):           BCC2019/6485689

MEMBER:  Warren Stooke AM

DATE:  3 December 2021

PLACE OF DECISION:  Melbourne

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

·cl 500.212(a) of Schedule 2 to the Regulations.

Statement made on 3 December 2021 at 11:13am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– value of the course to the applicant’s future –genuine applicant for entry and stay as a student temporarily – positive study progress – applicant is currently enrolled – 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 25 February 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The applicant applied for the visa on 5 December 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

1. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant has held long term temporary residence in Australia since 2015 and has declared to have maintained ongoing employment in Australia since their arrival. Additionally, the delegate’s finding included that the applicant is proposing to undertake studies at the VET sector level in Australia, which is a significant regression to the qualifications they have attained in the past and that the applicant has failed to demonstrate the value of the proposed courses to the applicant’s future.

1. The applicant appeared before the Tribunal on 3 December 2021 to give evidence and present arguments.

1. The applicant was assisted in relation to the review by their registered migration agent.

1. The applicant stated that he understood the reason for the refusal of his visa was because the Department thought that he is not a GTE for study of a Student 500 course.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant for the purposes of study.

1. The applicant is a 30 year old from Bangladesh, who arrived in Australia on 20 August 2015 to undertake a Master of Professional Accounting at the Central University Queensland having completed a Bachelor of Business Administration at the East West University in Dhaka, Bangladesh.

1. The applicant has held three temporary visas since arriving in Australia, as follows:

   a.Student Visa (Subclass 573) from 07/2015 to 08/2017

   b.Student Visa (Subclass 500) from 09/2017 to 12/2017

   c.Temporary Graduate (Subclass 485) from 12/2017 to 12/2019

2. The applicant is currently the holder of a multiple entry Bridging Visa B that was granted on 5 December 2019 and came into operation on 13 December 2019 at the end of his 485 Graduate Visa.

1. The applicant provided evidence of health insurance with CBHS that commenced on 4 December 2019 and will end on 13 April 2022.

1. The applicant provided evidence of completion of a PTE English language test that he undertook on 14 September 2018, with a score of 55.

1. The applicant provided the following submission with his response to the s359(2) request for information on 19 October 2021:

   “In 2019, at the end of my Professional Year and internship, it was clear to me that I was lacking in management leadership and professional ability to interact with management and staff. I decided that I would find and study a suitable management and leadership focused course. I knew that Bangladesh did not offer or was even capable of offering any of the types of courses that would give me an international or global or a western focus. I knew Australia has a recognised education system and, from my time in Australia, knew of courses and schools that my friends and education agents had recommended.

At the same time my doctor advised that with my growing asthma and allergies (possibly from living in Melbourne) it was best to go to an environment that was warmer and more like my home country. I did my research of locations and institutions and found a good course focused on my requirements in an institution recommended to me in Darwin.

I moved to Darwin to pursue my chosen course and worked with my old employers at AHS Hospitality Ltd in Adina Vide Hotel in Darwin.

COVID was difficult and the hotel was quiet so I did not have any shifts from February 2020 to October 2020 so I focused on my studies. I completed my Diploma of Leadership and Management in March 2021 and all my hard work paid off. I was offered the House Keeping manager role with AHS Hospitality as well as the role of Night Auditor with the Adina Vide Hotel Darwin Waterfront. I started the Night Auditor role in April 2021.

I knew I was lacking the management skills and the course I had selected would complement and benefit my education.

Upon completion of my Diploma course, I was offered for the first time an accounting related role with responsibility. As the night auditor I am responsible for the hotel operationally in the absence of the heads of department. I am responsible for account queries, register audit for shift, shift closing and account adjustments for the shift. I am responsible for completing and maintaining the night audit process and the daily balancing of days transactions within

the hotel.

I have now been in the role since April 2021 and once I have finished the Advanced Diploma my manager has discussed that there will be opportunities with TFE Hotels in Asia or Europe.

In 2019, at the end of my Professional Year and internship, it was clear to me that I was lacking in management leadership and professional ability to interact with staff. I decided that I would find and study a suitable management and leadership focused course. I knew that Bangladesh did not offer or was even capable of offering any of

the types of courses that would give me an international or global or a western focus. I knew Australia has a recognised education system.”

1. The applicant provided evidence of strong family ties with Bangladesh where the following family are resident:

   a.Muhammad Abdur Rab - Father resident of Bangladesh and last visited in February 2020

   b.Rokeya Begum - Mother resident of Bangladesh and last visited in February 2020

   c.Muhammad Jasim Uddin - Brother resident of Bangladesh and last visited in February 2020;

2. The applicant’s father is retired from government service and is currently a legal adviser to a private company and has three rental properties for income.

1. The applicant has a wife, Nafisha Anjum, whom is studying medicine in Bangladesh.

1. The applicant provided evidence that he has a sister living in Melbourne, Australia, Ruksana Akter, whom he last saw in May 2021.

1. The applicant provided evidence that he has been working in Australia with the following businesses:

   a.TFE Hotels Ltd Night - Auditor from April 2021 to the present, on a salary of $50,000 per annum;

   b.Ahs Hospitality Ltd - Room attendant/House Person from December 2015 to April 2021 on a salary of $35,000 per annum;

   c.Empire Hospitality Australia Pty Ltd - Houseperson from July 2018 to June 2019 on a salary of $12,000 per annum;

   d.Silk Hospitality Pty Ltd – Houseperson from June 2019 to October 2019 on a salary of $8,000 per annum;

   e.Victorian Institute of Technology Accounting - Intern from August 2019 to October 2019 (no salary).

2. The Tribunal asked the applicant if he would have any difficulty in assimilating back into Bangladeshi society and he responded: “No”.

1. The Tribunal asked the applicant if there was any reason that would preclude the applicant from returning to Bangladesh and the applicant responded: “No”.

1. The Tribunal asked the applicant if it was his motivation to remain in Australia permanently and the applicant responded: “No”.

1. The applicant stated that he wanted to leave Australia with a good migration history, as it was his intention to engage in other overseas experiences with his medical qualified wife in the future and did not want to have a negative migration history.

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

1. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i)the applicant’s circumstances; and

(ii)the applicant’s immigration history; and

(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv)any other relevant matter; and

(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

1. 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.

1. The Tribunal is satisfied that the applicant has made academic progress in his chosen courses of study, since arriving in Australia and being granted a Bridging Visa A. In this regard, the applicant has completed the following courses of study:

   a.Diploma of Leadership and Management, at IH Sydney Training Services Pty Ltd from March 2020 to March 2021;

   b.Master of Professional Accounting, at Central Queensland University from July 2015 to November 2017

2. The applicant provided the Tribunal with evidence that he has a confirmation of enrolment to undertake an Advanced Diploma of Leadership and Management that will conclude in March 2022 and he will then return to Bangladesh.

1. The Tribunal accepts that there is no known evidence before the Tribunal that would suggest that the applicant has not complied with her visa obligations and satisfactory academic progress has been undertaken since the applicant commenced studies in Australia following her dependent 485 visa expiration.

1. The Tribunal, on balance, gives weight to the value of the course to the applicant’s future and accepts the evidence from the applicant that he will return to Bangladesh to join his wife, who has graduated with a degree in medicine and is currently undertaking an internship. The applicant has a Master of Professional Accounting and will have Diplomas in Leadership and Management and expects to obtain a good paying position in Asia and Europe, where he anticipates earning Euros 6000 per month.

1. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily to complete his course of study and then return to Bangladesh to join his wife.

1. 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(a).

1. 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

1. 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(a) of Schedule 2 to the Regulations.

Warren Stooke AM 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

1. 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.