Umair (Migration)

[2019] AATA 1889

Umair (Migration) [2019] AATA 1889 (12 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Umair

CASE NUMBER:  1707977

HOME AFFAIRS REFERENCE(S):           BCC2017/857720

MEMBERs:Shahyar Roushan (Presiding)

Damian Creedon

DATE:12 March 2019

PLACE OF DECISION:  Perth

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 12 March 2019 at 10:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – credible witness – change in career and study pathway – downgraded level of study in breach of Condition 8516 – steady progress since 2015 – conditional offer of employment in home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 6 April 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 4 March 2017. 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. The applicant appeared before the Tribunal on 27 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

5. The applicant was assisted in relation to the review by his registered migration agent.

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

CRITERIA FOR A STUDENT VISA

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.

3. For the following reasons the Tribunal has concluded that the the application for a Student (Temporary) (Class TU) visa should be remitted 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Material before the Tribunal

1. The applicant is a 29-year-old Pakistani national who first arrived in Australia on 25 October 2014 as the holder of an Offshore Class TU subclass 573 visa.

2. The Tribunal had before it a copy of both the delegate’s decision and the Department’s file in relation to the application.

3. The Tribunal also had before it a number of documents provided by the applicant before the hearing relating to his personal circumstances and education history since his arrival in Australia.  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.

4. At the commencement of the hearing on 27 February 2019 the applicant provided the Tribunal with copies of two further documents:

   ·A letter dated 8 February 2019 addressed to the applicant from the “Operation Manager” of the Deira Karachi Restaurant and purporting to be a conditional offer of employment as “Chef” pending completion of his studies; and

   ·An unsigned statement dated 23 February 2019 from the applicant addressed to the Tribunal.

5. The applicant’s Provider Registration and International Student Management System (PRISMS) record[1] shows that upon arrival in Australia the applicant was enrolled in a 21 month course of study comprising a Graduate Diploma of Business (16/03/2015 – 31/12/2015) and a Masters of Business Administration (‘MBA’) (14/03/2016 – 31/12/2016). 

   [1] As at 25 February 2019.

6. The applicant’s PRISMS record further shows that since his arrival in Australia he has been enrolled in 13 courses (including those outlined above) and has completed the following three:

Course Name	Date Commenced	Date Completed
·     Certificate III in Commercial Cookery	19/10/2015	09/10/2016
·     Certificate IV in Commercial Cookery	17/10/2016	23/04/2017
·     Diploma of Hospitality Management	01/05/2017	22/10/2017

1. PRISMS shows that the applicant is presently enrolled in an Advanced Diploma of Hospitality Management which he commenced on 16 November 2017 and is due to complete on 5 July 2019. 

Overview of evidence

1. The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments.

2. The following is a summary of the applicant’s evidence:

   ·He is the holder of a Bachelor of Commerce from the University of Karachi, awarded 20 January 2019, and his student visa was granted on the basis of his undertaking study for an MBA in Australia.

   ·When he first contemplated studying in Australia he intended building upon his Bachelor of Commerce degree by studying the MBA in order to pursue a career in accounting. 

   ·He stated that all of his family members presently reside in Pakistan, save for one brother who lives in Perth.

   ·His decision to study outside of Pakistan was due to the high value of foreign qualifications in the Pakistan job market and that he chose Australia as his preferred destination due to the excellent reputation of Australian qualifications in Pakistan, the nature of the education market in Australia and because his brother was already living in Perth and could provide him with support if required. 

   ·He intended to commence his studies in Melbourne because he did not wish to be a direct burden on his brother and Melbourne was where his preferred course was located. 

   ·He made the decision to vary his study plan from (ultimately) pursuing an MBA in Melbourne to a Certificate III in Commercial Cookery in Perth.  He stated that he made this decision because he was struggling in his diploma-level studies due to a combination of “homesickness”, an inability to adapt to Australian cultural and study norms and an inability to make friends or find a social support group in Melbourne.

   ·When asked by the Tribunal what his career goals now were he stated that his long term plan is to open his own restaurant in his home town, but that, immediately after completing his studies, he wishes to undertake employed work in Pakistan to gain industry experience.

   ·When the Tribunal put to him that this was a significant shift in his career goals, the applicant stated that he had initially undertaken business-related studies for cultural and family reasons and that he was now focussed on building a career in commercial cookery and hospitality in Pakistan.

   ·The applicant stated that he had recently returned to Pakistan and had gotten married on 7 December 2018.  He provided to the Tribunal a copy of a marriage registration certificate to this effect dated 21 December 2018 issued by the Government of Sindh, Pakistan.  He stated that his wife is presently in Pakistan and is studying for an MBA.

   ·The applicant also stated that on or around 20 August 2018 he purchased an investment property in Karachi.  The applicant provided two documents evidencing his purchase: firstly, a document entitled “Sale Agreement” dated 20 August 2018 and made between the vendor of the property and the applicant, as purchaser; and secondly a document entitled “Power of Attorney” also dated 20 August 2018 and made between the same parties.  Both documents relate to the same identified property in Karachi, Pakistan (‘property’). 

   ·The Applicant gave evidence that the property is an ongoing responsibility for him in Pakistan and one for which he must return home as soon as he has finished his studies.

   ·When asked about the conditional offer of employment he has received from the Deira Karachi Restaurant, the applicant stated that the offer was the result an application he had made in December 2018 when he was in Pakistan for his wedding, and that it was conditional upon the completion of his current course.

   ·He stated that upon completion of his current course he intends to wind up his personal affairs in Australia and return to Pakistan soon thereafter to take up the offer of employment.

   ·When asked by the Tribunal, the applicant confirmed that he did not have any military service commitments in Pakistan.  He also confirmed that he was not concerned to return to Pakistan for any reason, including political or civil unrest.

   ·The Tribunal questioned the applicant regarding his breach of condition 8516 of his initial student visa.  The applicant stated that he did not believe that he was breaching the condition as he had received advice that, providing he engaged in a course of education that would culminate in a bachelors degree, he could “downgrade” his study level in order to achieve that end.

Analysis and findings

1. The Tribunal found the applicant to be an honest and truthful witness who, where possible, supported his oral statements with documentary evidence.

2. Although the applicant’s career and study pathway changed significantly in 2015, the Tribunal accepts his evidence that his initial study plan was guided by familial and cultural expectations and that he had difficulty adapting to study in Australia at the level he initially intended.  The Tribunal notes a steady progress in the applicant’s studies since 2015.

3. The Tribunal accepts the applicant’s evidence as to his recent marriage in Pakistan, his purchase of a substantial asset there and his receipt of a conditional offer of employment.  The Tribunal considers that these, together with his evidence as to his broader familial ties in Pakistan, demonstrate a significant incentive for him to return at the completion of his studies.

4. Further, the Tribunal accepts the applicant’s evidence that successfully completing his present course (which he is due to complete on 5 July 2019) is a necessary condition to his employment prospects in Pakistan.

5. The Tribunal also accepts that the applicant’s explanation as to his understanding of the operation of condition 8516 was honestly held, albeit mistaken.  Ignorance of the operation of the condition does not excuse its breach; however in all of the applicant’s circumstances the Tribunal does not consider that this breach is, by itself, indicative of a reckless or indifferent attitude to Australian visa law.

6. The Tribunal accepts the applicant’s evidence that there are no incidents of civil or political disturbance in Pakistan that would act as an incentive for him to remain in Australia, and that he has no military service commitments there.

7. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

8. 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.

9. 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.

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.

1. 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.