Shabbir (Migration)

[2020] AATA 5209

Shabbir (Migration) [2020] AATA 5209 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Awais Shabbir

CASE NUMBER:  1922572

HOME AFFAIRS REFERENCE(S):          BCC2019/3077923

MEMBER:Elizabeth Tueno

DATE:26 November 2020

PLACE OF DECISION:  Melbourne

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

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 26 November 2020 at 5:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study at lower level in different subject area – value of course to applicant’s future – offer of job in home country pending completion of current course – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 17 June 2019. The delegate refused to grant the visa on 31 July 2019.

2. The delegate made the decision on the basis that there was insufficient evidence provided by the applicant as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations). Specifically, the delegate found there to be insufficient evidence regarding:

   a.Ties to their home country

   b.Economic circumstances

   c.Had significant incentive to return to his home country

   d.Value of course

   e.Other matters

   To be satisfied that the applicant genuinely intended to stay in Australia temporarily.

3. The applicant appeared before the Tribunal on 26 November 2020 by telephone due to the Covid-19 restrictions to give evidence and present arguments.  The Tribunal also heard evidence from the applicant’s potential employer in Pakistan, Mr Masaab Siddiqui.

4. At the time the applicant lodged his application for a further student visa, he was enrolled in a Diploma of Leadership and Management (commencing 1 July 2019 and ending on 29 July 2020) and an Advanced Diploma of Leadership and Management (commencing on 31 August 2020 and ending on 29 August 2021).  The applicant has completed the Diploma course and has commenced the Advanced Diploma course. 

5. The Tribunal has received a number of documents from the applicant which were not provided to the Department including:

   ·     A completed s.359(2) questionnaire containing requested student visa information from the applicant;

   ·     A genuine temporary entrant statement from the applicant (undated)

   ·     Receipt of payment of tuition fees at his current education provider;

   ·     Letter from Western Sydney University confirming the applicant’s completion and graduation from a Master of Accountancy (plus a certificate of completion dated 30 April 2018 and academic transcript);

   ·     Letter of offer of enrolment in a Diploma of Leadership and Management course;

   ·      Certificate of completion of accounting PYP dated 10 December 2018;

   ·     A letter dated 8 May 2019 from Mr Masaab Siddiqui with an offer of employment contingent upon the applicant completing an Advanced Diploma of Leadership and Management course;

   ·     Letter from CPA Australia dated 24 April 2018 confirming the applicant’s assessment as being academically suitable for migration under ANZSCO 221111 Accountant (General);

   ·     Evidence of his family’s various land ownership in Pakistan; and

   ·     Certificate of completion of a Diploma of Leadership and Management dated 20 July 2020 with academic transcript.

6. In addition to the documentary evidence, the Tribunal has also had regard to the oral evidence given at the hearing by the applicant and by Mr Siddiqui.

7. The applicant said that he needs to complete the Advanced Diploma course because =he needs to have a competitive edge and that he is lacking in leadership and management experience.  He said he has been offered employment with a company called BoxFit in Pakistan, who’s chief executive officer is Mr Siddiqui.  He confirmed that he has never worked for this company before and that if he obtains these further qualifications in Australia it will be the equivalent of holding an Associate Degree from Pakistan.  He said his parents are getting old and he needs to look after them, that he is not from here and does not belong in Australia.  He confirmed that his father owns 7 or 8 properties in Pakistan (which was evidence by supporting documents mentioned above).

8. Mr Siddiqui gave evidence that the applicant had applied online for a job as human resources manager in his production factory in Pakistan.  He said they have now filled that position by they are in great need for suitably qualified staff, particularly those with international qualifications who can be trusted and are capable of helping run the business.  He said that although that position has now been filled, there will be a job available to the applicant when he completes his studies next year because he will be suitably qualified.  E confirmed that he did not know the applicant prior to him applying for a job at his company and that he suggested that the applicant should obtain qualifications in leadership and management.

9. The Tribunal considers that Mr Siddiqui presented as an honest and reliable witness, with no previous connection to the applicant.  The Tribunal accepts his evidence that he is in need of employees who have studied overseas and who are trustworthy to help run his business.    His evidence is also consistent with the applicant’s evidence.  It is noted that Mr Siddiqui was not present in the hearing when the applicant was giving his evidence. 

10. The Tribunal is satisfied that the applicant has demonstrated that the proposed courses will have value to his future and having a potential job waiting for him upon his return to Pakistan after finishing the Advanced Diploma is a strong incentive for him to return to his home country.  The Tribunal is also satisfied that the applicant has sound economic circumstances.  The Tribunal takes into account the length of time the applicant has spent in Australia, but he has returned to his home country and actively looked for work there. 

11. The Tribunal is satisfied that considering the applicant’s circumstances as a whole, in light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

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

    ·cl.500.212 of Schedule 2 to the Regulations.

    Elizabeth Tueno
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.