Touseef (Migration)

[2019] AATA 3163

Touseef (Migration) [2019] AATA 3163 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Touseef

CASE NUMBER:  1705148

HOME AFFAIRS REFERENCE(S):          BCC2016/2945296

MEMBERs:Shahyar Roushan (Presiding)

Damian Creedon

DATE:9 April 2019

PLACE OF DECISION:  Perth

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

Statement made on 09 April 2019 at 11:47am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – multiple courses completed – study in field unrelated to and at lower level than previous studies – genuine career path – evidence vague, evasive and contradictory – academic progress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 and Border Protection on 8 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 September 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the review applicant did not satisfy the requirements of cl. 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

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 satisfies cl.500.212(a).

2. 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 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.

2. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Material before the Tribunal

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant has submitted to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 36-year-old Pakistani national who first arrived in Australia on 24 February 2013 as the holder of a Student (Class TU subclass 572) visa.  The applicant was granted a further Student (Class TU subclass 572) visa on 5 September 2014 which was valid until 5 September 2016.  The applicant applied for the visa the subject of this application on 5 September 2016.  At that date the applicant was enrolled to undertake a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and a Diploma of Hospitality.

3. In submissions to the Department in support of his application the applicant set out the following information:

   a.After completing his secondary studies in Pakistan he decided to study overseas to further his education.

   b.He chose Australia as his preferred destination in consultation with his family and on account of the reputation of Australian courses.

   c.He was initially enrolled in a Certificate IV in International Trade and a Diploma in International Business, but he came to the realisation that there are a “few drawbacks” to this course of study as it does not offer “core or elective” units in the management of businesses but is focussed on trade between different countries.

   d.His primary focus in studying is to gain skills to successfully set up and operate a business, and accordingly he decided to change his study pathway to marketing, management and human resources “as these are the foundations of successful business[es]”.  He stated that his first priority was to be competent in these skills and then choose an industry in which he can have a career.

   e.He stated that although he was always inclined towards working in the building and construction industry in Pakistan, as he has “[a] few relatives who are successful builders”, after researching the industry further he realised the capital required to set up and run such a business was beyond his capabilities.

   f.He stated that he then researched other career options in his home state in Pakistan and settled upon the hospitality industry, in particular in view of recent government initiatives to develop tourism in the region.

   g.When he changed his mind from building and construction to hospitality he decided to enrol in a pathway of commercial cookery and hospitality management.  He stated that he already had enough “theoretical knowledge [in] how to initiate, sustain, maintain [and] advertise a business” from his business management courses, but that he required vocational training to provide the practical basis of how to run a business in the hospitality industry.

   h.He stated “[t]he reason why [I] took another Vocational Course is because the career path I am pursuing can only be achieved by having technical knowledge and in-depth knowledge of industry”.  He further stated that, faced with the choice between a bachelor’s degree in hospitality or a vocational course in hospitality, he chose the latter as he had already acquired the necessary theoretical knowledge to run a business but was lacking practical skills.

4. The Tribunal also had before it a number of documents provided by the applicant both before and after the hearing.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

5. The applicant appeared before the Tribunal on 27 February 2019 to give evidence and present arguments.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

Analysis and findings

1. According to the evidence submitted by the applicant, including his response to the Tribunal's s.359A letter, at the date of his current visa application (5 September 2016), the applicant had successfully completed the following six courses in just over three years:

Course Name	Date Commenced	Date Completed
·    General English	22/04/2013	28/06/2013
·    Certificate IV in Business	12/08/2013	13/02/2014
·    Diploma of Management	17/04/2014	08/10/2014
·    Diploma of Marketing	03/11/2014	04/05/2015
·    Advanced Diploma of Marketing	08/06/2015	09/12/2015
·    Diploma of Human Resources Management	04/01/2016	05/07/2016

1. In his evidence to the Tribunal the applicant stated that he had selected these courses because his initial career goal was to start a small business.  When asked by the Tribunal in what sector he intended to start a business, he stated that from the “very start” he had wanted to open “a café or restaurant or something like that”.  The Tribunal put to the applicant that this evidence contradicted his statement to the Department that the “fundamental” purpose of his decision to study in Australia was to start his own business in building and construction.  In response the applicant stated that formal qualifications are not required to work in, or establish, a construction business in Pakistan and he reiterated that his goal in coming to study in Australia was to start “a business”.  When pressed, the applicant stated that his initial career goal was “to get a degree and diplomas and go back and start up something”.  The Tribunal found the applicant’s evidence and explanations unsatisfactory. The Tribunal found the applicant’s evidence regarding his initial career plans to be vague, unconvincing and, at times, contradictory. Despite further probing by the Tribunal, the applicant was unable to offer any further details to overcome the Tribunal's concerns. 

2. Since his present visa application on 5 September 2016 the applicant has completed a Certificate III and Certificate IV in Commercial Cookery and he is presently enrolled in a Diploma of Hospitality Management which is due for completion in July 2019.  While the Tribunal initially had concerns over apparent gaps in the applicant’s study history since his application, the applicant was able to satisfy the Tribunal that he has been continuously studying. 

3. The Tribunal put to the applicant its concern that since making his visa application he had changed the focus of his study from the field of business and management to unrelated studies in the field of commercial cookery.  The applicant stated that he had chosen to pursue commercial cookery courses “because [they are] skills based and hands-on” and that he had realised that he required such skills to run a business.  The Tribunal put to the applicant that it had appeared to take some time for him to reach this realisation, to which he replied “the market is changing day by day [and] you have to change your mind accordingly to match the market”.  The Tribunal did not find this explanation satisfactory. The Tribunal was not persuaded by the applicant’s response that he realised that he required hands-on skills or to adapt to a changed market some three years following the commencement of initial studies. The Tribunal shared the delegate’s concern that, through the relatively low level courses he has selected in unrelated study fields, the applicant appears to be using the student visa programme as a means of maintaining residence in Australia.  When this concern was put to the applicant he stated that this level of study is easier for him than pursuing a bachelor’s degree.  The Tribunal did not find the applicant persuasive as to his reasons for changing his study focus to commercial cookery, and his evidence did not allay the Tribunal’s expressed concerns in this regard.

4. As to his future career goals, the applicant stated to the Tribunal that after finishing his current diploma course he will return to Pakistan “straight away”.  When asked by the Tribunal what his plan is upon his returning, he stated that he “will have a look at the market and if [he] can’t find a market for [himself he] will look for a job in commercial cookery as a chef and cook”.  When asked by the Tribunal about the current state of the job market for cooks in Pakistan, the applicant responded “no idea, no idea”.  The Tribunal found these answers vague and was not persuaded that the applicant’s present course of study is in pursuit of a clearly developed career plan. The Tribunal was not satisfied that the applicant’s proposed business plan was a genuine career path to which the applicant is committed.  

5. The applicant gave evidence that he could not study commercial cookery in Pakistan when he first came to study in Australia, but that there are “a lot” of such courses available there now.  When asked by the Tribunal why, then, it is necessary for him to study in Australia the applicant stated that he has already started his diploma here.  In the circumstances the Tribunal does not consider that this weighs against the applicant.

6. There is no evidence before the Tribunal of any military service or civil or political incidents that would act as an incentive for the applicant to remain in Australia. There is also no evidence that the applicant has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal.  There is no evidence regarding the remuneration the applicant could expect to receive in Pakistan or a third country compared with Australia save that, since arriving in Australia, the applicant stated that he has been working as a “Deliveroo” driver.

7. The Tribunal also accepts the applicant has family ties to Pakistan which provides him with an incentive to return there and that he has no family in or other ties to Australia.

8. The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has family ties in Pakistan and all the other matters he has raised. However, for the reasons outlined above, the Tribunal does not accept he is undertaking the current study or future study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

9. Overall, the Tribunal found the applicant’s evidence to be vague, evasive and, at times, contradictory.  The Tribunal finds that he has had ample opportunity to progress academically in the time he has been in Australia, but he has failed to move out of unrelated study paths in the vocational education and training sector.  It is the Tribunal’s view that pursuing study so as to improve his employment or business opportunities in his home country is not his primary reason for seeking to remain in Australia.  Rather the Tribunal considers that the applicant is using his student visa to maintain ongoing residence.

10. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant does not meet cl.500.212(a).

11. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

12. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

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

Shahyar Roushan
Senior Member

Damian Creedon
Member

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

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

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

3. 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

1. 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.

2. 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

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

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

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

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

   f.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

   g.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

1. 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.

2. 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;

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

   ii.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

   iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

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

1. 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

1. 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.