1918754 (Migration)

[2020] AATA 6199

1918754 (Migration) [2020] AATA 6199 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918754

MEMBER:Noelle Hossen

DATE:6 August 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 06 August 2020 at 7:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – multiple student visas and low-level, inexpensive courses in different subject areas – value of course to applicant’s future – confusing evidence and generalised statements of business plans – no work experience in relevant field or at all – parents in home country and husband and Australian-born child in Australia – members of family unit – decision under review affirmed

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 3 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 April 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal invited the applicants to provide further information to the Tribunal pursuant to Section 359(2) on the 21 November 2019.

5. The applicant provided further information to the Tribunal on the 5 December 2019.

6. The applicants provided 10 documents in total to the Tribunal on the 13 July 2020 including but not limited to :Certificates that the first named applicant has completed, statement from her father, statement from her migration representative, bank statement of funds in Mauritius, and documents regarding her father’s business.

7. The first named and second named applicants appeared before the Tribunal on the 16 July 2020 to give evidence and present arguments.

8. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

11. 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?

12. 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.

13. 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.

14. The first named applicant arrived in Australia from Mauritius [in] February 2013 on a student visa. She has applied for 6 student visas in total including the visa the subject of this application. She is accompanied by [her husband] who will be referred to as the second applicant.

15. The applicants had a child who was born (named [Name]) in Australia on [Date].

16. Prior to her arrival in Australia the first named applicant completed a course in [Subject 1] in 2012.

17. She did not provide the Tribunal with any evidence of her work experience prior to her arrival in Australia.

18. She stated in writing that she had a mother and father and one brother who reside in Mauritius and she last saw them in July 2019.She did not mention her closeness to her family other than the fact that her father was going to support her when she returns to Mauritius to set up her business. Her father did write a letter to the Tribunal setting out his support by indicating that he planned to purchase a block of land to build her [Business] in Mauritius. He was aware that she planned to remain in Australia to finish further courses until January 2023.

19. The representative has indicated in his statement that she planned to finish her course at the end of 2020.

20. The first named applicant stated in her written material in her Form 17 submitted to the Tribunal as follows: “I have completed a course in [Subject 2] which I can use to help [people] in my country as part of [work] that interest me a lot. I have always been motivated by helping others. I find myself as someone who like heling people in need. After completion of my [Subject 2] Course at TAFE, I have realised that I can use the knowledge gained in the course to help others on a voluntary basis but I also need to work for a living in this job. I am more business oriented and would like to work in Mauritius in the [Business] industry for a couple of years only to get some local experience and to know the law in my own country regarding [Business industry] and working with [Specified people]. After the required experience , I intend to open my own [Business] and to get staffs to work for me under my management”.

21. The Tribunal finds her explanations hard to follow as they are all generalised statements and there is no indication that she has researched the viability of such a proposition. Apart from her work placements there is no evidence that the first named applicant has ever worked in any field. If she was genuine about opening a [Business], she would have at least tried to get some work experience in the industry.

22. The changes in her studies indicates that she may be just studying low level and inexpensive courses at VET level so that she can maintain residence in Australia. The Tribunal is not satisfied that the applicant isn’t simply now proposing further short inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.

23. Having regard to the applicant’s circumstances, including where she is at in her career, the Tribunal is not satisfied the study proposed will assist her to obtain employment or improve prospects of employment.

24. The evidence from her father and the statement made by her representative did not match the information supplied by the applicant. The date that she proposes to complete her courses appear to be 2023 and her evidence is confusing.

25. In her written form provided to the Tribunal the applicant did not declare travel to any other country other than Australia. there is nothing before the Tribunal to indicate that the applicant has travelled to other countries and that she has experienced visa refusal or immigration issues with any other country.

26. She said that she contacts her family members 4 times a week via social media.

27. She has returned to visit her family in Mauritius on 2 occasions being for 28 days in August 2016 and 25 days in July 2019.The Tribunal considers that she does have significant ties to Mauritius as her parents live there but she has only returned to her home country on 2 occasions in the 7 years that she has lived in Australia.

28. She told the Tribunal that she has a very supportive family and expects that her father will help her financially when she returns to Mauritius as she is the only daughter.

29. The Tribunal finds that she does not appear to have stronger family ties in Mauritius that will serve as a significant incentive for her to return to her home country. This is because the two members of her family that she is closest to, namely her husband and her daughter are both residing with her in Australia. The Tribunal places a lot of weight on those facts against the applicant’s case.

30. She has supplied a copy of her bank statement showing that her husband and her have $15,000 in a bank account in Mauritius. However, that represents a moveable asset that can easily be transferred to Australia.

31. The first named applicant has completed numerous courses in Australia including General English, Certificate III and IV in [Subject 2] and a Diploma in [Subject 2].

32. She then proceeded to complete a Certificate III in [Subject 3] followed by a Diploma in [Subject 3].

33. She then completed another course in General English before completing a Diploma in [Subject 4] in February 2020.

34. She is now studying a Diploma in [Subject 5] and expects that this will be completed on the 16 October 2020.She is proposing to complete an Advanced Diploma in [Subject 5] followed by a Diploma in [Subject 6]. If she is permitted to continue with her studies the applicant will remain in Australia until the 6 January 2023.As she originally arrived in Australia [in] February 2013, it will mean that the applicant would have spent 10 years in Australia.

35. Whilst she was completing her studies, she applied for other courses at the beginning of her stay that she cancelled. She had originally planned to complete a packaged course in [Subject 7] including a Certificate IV, Diploma of [Subject 7] and an advanced Diploma in [Subject 7]. These courses were cancelled as she chose to study a Certificate III and Certificate IV in [Subject 2] followed by a Diploma in [Subject 2] which she completed on the 18 of December 2015.

36. She deferred her studies from 2016 to the 10 January 2017 as she gave birth to her daughter and her deferment was approved as she started her course being a Certificate III in [Subject 3] on the 3 October 2017.She completed her Diploma in [Subject 3] on the 9 November 2018.

37. She then completed her Diploma in [Subject 4] and is presently studying a Diploma in [Subject 5].

38. At the hearing that the first named applicant kept repeating that she was still young and wanted to complete the Course. She was [Age] years of age at the date of the hearing.

39. She says that when she returns to her home country that she plans to open a [Business] and she will be targeting the upper classes in a rural area. She told the Tribunal that she worked hard in her placements. The Tribunal accepts her evidence as it does appear that she has been placed in short term placements in various [Businesses] whilst working in Australia. The Tribunal does take into consideration that she has progressed satisfactorily academically in her studies in Australia.

40. However, the Tribunal is of the view that if she truly intends to return to her home country and work in the field of [Business industry] she would have already left the country to gain experience in her field in her home country .She does not appear to have secured part time employment in her chosen industry whilst studying in Australia save for work placements.

41. The applicant has not worked whilst in Australia, save for her work placements. She says that she has not earned any money in Australia. In her written evidence her last work placement was in 2018.She had another work placement for 1 month in 2017.She had 2 work placements in 2015 and 2 work placements in 2014.The work placements were for 1 month each.

42. The first named applicant did not produce any evidence that she worked before arriving in Australia and appears to have only worked in the abovementioned placements since her arrival in Australia.

43. The first named applicant has not demonstrated that she is really going to be engaging in the workforce when she returns to her home country. If she was truly keen to open a [Business] after she graduated, she would have at least tried to work in that field to gain experience whilst in Australia. She might have to care for her child, but she should have the assistance of her husband who only works on a part time basis.

44. She says that her husband works part time as [an Occupation] and that he earns about $500 to $ 1000 a fortnight.

45. When asked what she plans to do in the future she stated that she had worked hard in her study work placements and that she is happy to go back to her home country. She then said that she wishes to learn how to open a business and it is for this reason that she is studying the present courses. The Tribunal does not accept her explanations as her oral evidence was generalised and repetitious.

46. She said that she studied the [Subject 4] unit as she wanted to do her own [Job task] for her business.

47. The Tribunal does not accept her explanations that she plans to work in that field when she returns to Mauritius as she does not appear to have a strong work ethic as she has no work experience on a full time or part time basis since graduating from any of her courses in the entire of her life.

48. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia temporarily. Given the amount of time that the first named applicant has remained in Australia on student and a bridging visa, the Tribunal is concerned that a further student visa may be used primarily to maintain ongoing residence.

49. The applicant does not have to do military service and there is no political and civil unrest in her home country.

50. The Tribunal does not have any evidence to consider the following factors: whether the first named applicant has sound reasons for not undertaking the courses in her home country, remuneration the applicant could expect to receive in Mauritius or a third country compared to Australia, circumstances in Mauritius relative to Australia or any other country and the applicants’ circumstances in Mauritius relative to others in that country.

51. The second named and third named applicants have applied for a visa on the basis of being a member of the first named applicant’s family unit and therefore their application is determined by the first named applicant’s Application.

52. 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

53. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Noelle Hossen
    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.