Akhabue (Migration)

Akhabue (Migration) [2019] AATA 4837 (1 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Rosemary Akpevweoghene Akhabue
Mr Sabbath Akhabue
Miss Deborah Madison Efua Akhabue
Miss Mackenzie Dorcas Osemudiamen Akhabue
CASE NUMBER:  1904463
HOME AFFAIRS REFERENCE(S):           BCC2018/5604655
MEMBER:Damian Creedon
DATE:1 October 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the directions that:
a. the first-named applicant meets the following criteria for a Subclass 500 (Student) visa:
• cl.500.212(a) of Schedule 2 to the Regulations; and

b. the second-named applicant and the third-named applicant meet the following criteria for a Subclass 500 (Student) visa:
• cl.500.311 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction in respect of the fourth-named applicant.

Statement made on 01 October 2019 at 10:02am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student– genuine interest in study – positive study record –personal ties to home country –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218, 500.311

CASES
SZRMC v MIAC [2012] FMCA 845

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 12 December 2018. 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
On 2 September 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing within the prescribed period, ending 16 September 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
In her response, the applicant indicated that she consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
In these circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information. The Tribunal has had regard to all the information before it, including the information provided to the Tribunal by the applicant, and the information previously provided by the applicant to the Department.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.
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?

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.
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.

Overview of evidence

The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.
The applicant is a 40-year-old Nigerian national. The delegate’s decision record notes the following relevant information:
I note that the applicant was granted a TU 573 student visa as a dependant on 25 March 2014 and arrived in Australia on 6 April 2014. The applicant was granted a subsequent TU-573 visa and then a VC-485 visa and then two onshore further stay TU-500 student visas all as a dependant. The most recent TU-500 visa ceased on 23/12/2018 the applicant is currently the holder of a bridging visa A associated with the current visa application.
Accompanying the applicant’s response to the Tribunal’s s.359(2) invitation was a number of documents including:
a.a statutory declaration made by the applicant on 16 September 2019 which will be referred to by the Tribunal in its analysis below (Statutory Declaration); and
b.an Overseas Student Confirmation-of-Enrolment (CoE) confirming the applicant’s enrolment in a Diploma of Leadership and Management which started on 4 February 2019 and is scheduled to end on 20 December 2019.
Analysis and findings
It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
Save for brief periods, the applicant has been resident in Australia for five-and-a-half years, since March 2014. In that time she has held five temporary visas, as a dependant to the second-named applicant’s student and work visas, and associated bridging visas. She is currently onshore on a bridging visa pending the outcome of her application for her first Student visa as the primary applicant. In her Statutory Declaration the applicant states that her motive in seeking to undertake her own studies in Australia is because, although similar courses are available in Nigeria, the standard of Australian education is considerably higher than Nigeria; Australian qualifications are globally recognised; carry a particular prestige in Nigeria and allow the applicant to obtain English language skills. Taken together, the applicant claims that these characteristics will provide her with a competitive advantage in the employment market in Nigeria. Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia and they do not cause the Tribunal particular concern.
The applicant’s evidence to the Tribunal is that she obtained a Bachelor of Science (Mathematics) in Nigeria in 2005 and worked predominantly as a school teacher between 2007 and 2014, although she spent just over two years working as a ‘Sales Representative’ between May 2008 and August 2010. The applicant states in her Statutory Declaration that she taught mathematics at a secondary school in Nigeria, but that she was not ‘passionate’ about it. She states that her preferred career is in ‘Administration’ and that she chose her study pathway to enhance her opportunities in this regard, either in a new field or as a school Principal in Nigeria. The applicant states that she has made inquiries in respect of future opportunities and has had a positive response from a former employer. In assessing the applicant’s claims the Tribunal places weight on her previous work experience as demonstrating the relevance of her proposed course of study to her future career pathway, and it considers the applicant’s statements as to her future career aspirations to be reasonable and convincing in the circumstances. Overall, the Tribunal finds the applicant’s evidence persuasive and accepts the value of her proposed course to her future.
In respect of her ties to her home country the applicant’s evidence it that her parents and four siblings are resident in Nigeria. Her husband, the second-named applicant, and two daughters, the third- and fourth-named applicants, are resident with her in Australia. The applicant’s evidence is that, in the family’s time in Australia her husband has completed a Master of Science (Geophysics) from Curtin University in 2015 and a Graduate Diploma of Education (Secondary Education), also from Curtin University. The applicant’s evidence is that her husband was unable, initially, to obtain work in his chosen field (Geophysics) and that this motivated him to obtain his Graduate Diploma of Education. The economic disparity between Australia and Nigeria is of concern to the Tribunal. Balanced against this, in her Statutory Declaration the applicant states that her husband has now received a written offer of employment, a copy of which she provided to the Tribunal. It is unclear, however, whether her husband has accepted (or intends to accept) that offer. In any event, the Tribunal accepts that the couple’s prospects in their home country have been enhanced by their studies in Australia and that these prospects act as an incentive for the applicant to return there.
The Tribunal accepts that, having lived in Australia for five-and-a-half years, the applicant has sufficient knowledge of living in Australia; although she provides no specific evidence as to her knowledge of her intended course of study the Tribunal accepts that it is consistent with her current level of education and her experience in the workplace. In all of the circumstances the Tribunal places some small weight on this factor in the applicant’s favour.
There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia. The Tribunal places some weight on this factor in the applicant’s favour.
There is no evidence before the Tribunal that the applicant, or a relative of 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.
The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant.
In weighing the available information the Tribunal has taken care to draw no inferences adverse or unfavourable to the applicant from any absence(s) of evidence or information.
In assessing the application the Tribunal places weight on the applicant’s evidence as to the value of the course to her future, her positive study record and her personal ties to her home country as providing an incentive for her and her family to return to her home country.
Overall the Tribunal is not persuaded that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme. For the reasons outlined above the Tribunal accepts that the applicant is undertaking her current study or future study for the reasons she claims.
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).
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.
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 in respect of the first-named applicant, the second-named applicant and the third-named applicant.

The fourth-named applicant

The first-named applicant, the second-named applicant and the third-named applicant made the visa application the subject of this review on 12 December 2018.
According to the ‘Application for Review’ form lodged by the applicants with the Tribunal, the fourth-named applicant was born on 21 January 2019 – that is, after the visa application was made to the Department.
There is no indication in the Departmental file that either the Department or the delegate were informed of or were otherwise aware of the fourth-named applicant’s birth before the delegate made their decision on 14 February 2019. No mention of the fourth-named applicant is made in the delegate’s decision record.
It follows that, whilst the fourth-named applicant is taken to be a secondary applicant for the visa,[1] and the Minister is under a continuing obligation to make a decision on the fourth-named applicant’s claims, the fourth-named applicant is not able to make a valid review application to the Tribunal because her visa application has not been dealt with by the Minister’s delegate.[2]
[1] Having been taken to have made a combined visa application with the first applicant at the time she was born.
[2] SZRMC v MIAC [2012] FMCA 845 (Driver FM, 31 September 2012), at paras [30]-[31].
Accordingly, the Tribunal has no jurisdiction in respect of the fourth-named applicant’s review application.

DECISION

The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the directions that:
·cl.500.212(a) of Schedule 2 to the Regulations; and
·cl.500.311 of Schedule 2 to the Regulations.
The Tribunal has no jurisdiction in respect of the fourth-named applicant

Damian Creedon
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

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.
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).
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.
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.
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

Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
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

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.
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

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

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

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

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

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.

[2019] AATA 4837

1 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Remedies