Arriyapperuma Ramanayake (Migration)

[2022] AATA 4836

Arriyapperuma Ramanayake (Migration) [2022] AATA 4836 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dileepa Arriyapperuma Ramanayake

REPRESENTATIVE:  Ms Sarah Leora Frankel

CASE NUMBER:  2202520

HOME AFFAIRS REFERENCE(S):          BCC2018/2973780

MEMBER:Gabrielle Cullen

DATE:26 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2022 at 12:12pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant had spent 14 years in Australia – applicant was not a genuine applicant for entry and stay as a student – lack of genuine study – poor academic record – genuine temporary entrant criterion not met– current employment history –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, 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 Home Affairs on 22 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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 applicant arrived in Australia on 2 August 2008 as the holder of a subclass 573 student 2008. He was granted a further student visa to 18 September 2016 and was then granted a subclass 485 visa on 10 February 2017 to 10 August 2018[1]. He applied for the visa to which this decision relates on 8 August 2018.

   [1] As outlined in the Department decision submitted to the Tribunal.

4. During this period, he departed Australia from 30 July 2009 to 16 August 2009, 12 June 2010 to 12 July 2010, 21 December 2011 to 9 February 2012, 21 January 2014 to 4 February 2014, 28 January 2015 to 13 February 2015, 28 June 2015 to 18 July 2015, 31 July 2015 to 16 August 2015, 19 Janaury 2017 to 10 February 2017, 20 May 2017 to 1 July 2017 and 19 July 2017 to 18 August 2017and 29 October 2017 to 15 November 2017.

5. Confirmation of Enrolments (CoEs) attached to the application for the visa refer to the applicant studying a Diploma of Leadership and Management from 6 August 2018 to 31 January 2020 which was changed to study the same course from 8 October 2018 to 3 April 2020. The evidence indicates  he again changed to study the same course from 1 April 2019 to 3 April 2020. He submitted a further COE  to study a Diploma of Leadership and Management from 15 June 2020 to 21 February 2021[2]. The evidence from the applicant is that he has not successfully completed the Diploma of Leadership and Management. On 21 June 2022 he submitted to the Tribunal COEs dated 20 June 2022 to study a Diploma of Leadership and Management from 13 August 2022 to 11 August 2023, followed by an Advanced Diploma of Leadership and Management  from 26 August 2023 to 23 August 2024.

   [2] Although not recorded in PRISMS the Tribunal accepts he was enrolled in this course.

6. According to the evidence submitted by the applicant, including his response to the Tribunal's s.359(2) invitation, since arriving onshore he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
Academic English Course	08/2008	09/2008
Certificate IV in University Foundation Studies	02/2009	06/2010
Diploma of Engineering-Technical	01/2011	06/2011
Diploma of Engineering-Technical (Mechanical)	06/2011	01/2012
Diploma of Civil Construction Design	07/2012	12/2012
Advanced Diploma of Civil Construction Design	01/2013	12/2013
Certificate IV in Work Health and Safety	04/2014	04/2015
Diploma of Work Health and Safety (Business Services)	07/2015	07/2016

1. In the application for the visa the applicant provided evidence of health insurance, certificates of completion as to the courses referred to above, his NAB bank statement and IELTS test, identity documents, pay slips from the Four Seasons hotel, evidence he paid $3,651 towards the Diploma of Leadership and Management on 25 July 2018 and a genuine temporary entrant statement. He indicated that in 2017 his parents set up a family business in Gemstone Mining and with his background in engineering he will be able to contribute to the technical engineering aspects. He noted that to succeed in the role of business manager he needs to improve his knowledge of and learn effective leadership skills, hence his wish to undertake the Diploma of Leadership and Management. He noted he financially supports himself due to his work as Guest Relations Officer at the Four Seasons Hotel since 2012. He also noted that he is living with his sister in Perth. As to ties to his home country he noted he has financial and business incentives to return to Sri Lanka and he needs  to return to assist his parents to run the family business.

2. His sister also provided a statement, noting she is a citizen of Australia and is willing to support her brother in terms of accommodation and financial support. She provided evidence of her home loan statement which offers her a redraw facility.

3. The delegate’s decision outlined a letter sent to the applicant on 6 September 2018 outlining a number of concerns including his length of time in Australia, that his sister is an Australian citizen, his employment at the Four Seasons Hotel since 2012, that despite electing in the subclass 485 application  to work as a Civil Engineering Draftsperson, he has never worked in the engineering sector in Australia and questioned why if it is his aim to return to his parents gemstone mining business he would work in the hospitality industry for the previous 8.5 years. The delegate raised a number of questions relating to Direction 69 and the genuine temporary entrant criteria.

4. The applicant responded with a  further genuine temporary entrant statement dated 27 September 2018 as follows, as well as evidence of his family’s property ownership in Sri Lanka and father’s bank assets.

   During my foundation studies, I had the understanding that engineering would be an ideal choice as a career in regard to the mining booms and the overall infrastructural improvements happening in Western Australia, therefore I made the change from Hospitality to Engineering during that time period. While I was engaged in my studies I was employed by 4 Points Sheraton Hotel on casual basis. This income I used to fund my living expenses. I continued to complete my education in engineering successfully and without setbacks.

   After my higher educational tasks were completed, I applied for a temporary work visa 485 under the nominated occupation of Civil Engineering Draftsperson. I began to apply for internships and job vacancies in my field after receiving the aforementioned temporary visa, however I had no luck in securing a steady job in the foreseeable future. I was still employed at 4 Points Sheraton during this discourse and I had no intention of leaving that job as it was my only source of income in Australia. Over the course of the year 2017, I kept applying for jobs in Engineering however I failed to find one which I could employ myself in.

   Gem-mining was an industry that my father in Sri Lanka was always passionate about. He, having connections in that industry via his associates, made it a business he was always interested and one he asked me to be a part of one day, as I had a sufficient education in Engineering as well. During my vacations spent in Sri Lanka, therefore, I helped my father in doing primary and secondary research about the gem industry and its operations. The possibilities of procuring a piece of land under which the rare gems could be found was a rare and extensive task and one not to be lightly undertaken due to the significant investment involved. It was a course of business which takes many years of careful planning and investing to be a budding success. Entry into the gem business is a long process. Licenses are required which are obtained from the government. We have applied for this permit and its acceptance is pending. We have finalised the mining area, and checked for soil samples of the land in question. Due to the slow process of the government of Sri Lanka, we expect to obtain the permit later on this year and there is no systemic method of obtaining it and government red tape has proven to be a difficult obstacle. Knowing that I had an opportunity for a highly lucrative business in Sri Lanka in the upcoming years, I decided that the course in Leadership and Management would equip me with the necessary skills to help my father with the day-to-day management of the business.

   The gem industry in Sri Lanka is closely associated with the tourism industry; most of the gems obtained are primary catered towards to incoming tourists with second preference to locals. With the tourism industry going hand in hand with gem industry, I understood that my education in Engineering, work experience of over 8 years in Hospitality and Customer relations, in addition to the Leadership and Management course I intend to complete, would provide with a substantial and solid foundation to succeed in my future endeavours in Sri Lanka.

   My parents reside in Sri Lanka and my only sibling lives in Australia. My parents are old (68 and 66) and are no longer able to run the family businesses on their own. As their only son I intend to return to Sri Lanka after my studies, both to take care of them and also help them with running family businesses. My father owns the house and the land which it is on in Sri Lanka, and also my mother has another coconut estate under her name. They earn a regular income by selling its produce.

   Please find attached my father's bank statement and evidence of ownership of other assets for your reference.

5. The applicant also provided his resume.

6. The delegate decided to refuse to grant the visa on 22 October 2018. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the applicant’s length of time in Australia, having arrived in Australia in 2008 and only spending 263 days outside Australia, that he lives with his sister who is an Australian citizen and has worked at the Four Points Sheraton Hotel as Guest Relations Officer since 2012, did not accept he was studying the courses in Australia to work as Mining Engineer/Business Manager or for any value to his future and as he has not completed any courses above the vocational level.

7. The applicant applied to the Tribunal on 1 November 2018 and attached the decision of the Department.

8. On 1 August 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows.

   As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information from which you can access by clicking on the link below.

9. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

10. After a request for an extension of time to respond was accepted on 15 August 2019 the applicant provided a completed ‘Request for Student Visa Information’ form. He indicated in the form that his parents own assets.

11. He also provided a further genuine temporary entrant statement addressing the genuine temporary entrant criteria. He repeats much of what he had said in his previous GTE statement. He notes the Sri Lankan economy is robust, there is no political turmoil in his county nor security reasons which would discourage him from returning home and his aim is to return and manage his own engineering/contracting firm. He refers to his past completion of engineering courses. He notes his family and siblings other than his sister reside in Sri Lanka, and he communicates with them almost every day. He refers to the properties his family owns and that he will manage them on return.

12. A submission from his then representative notes the applicant was studying the Diploma of Leadership and Management to either be employed as a Civil Engineering Draftsperson or establish his own business relating to the construction industry, and also being involved in the family business of mining for precious stones. He submits that the courses he has enrolled and completed are related to and relevant to his future career. He refers to his need to return to look after his family despite the applicant having a sister in Australia. He refers to the strength of the Sri Lankan economy and that there are no political issues

13. The applicant first appeared before the Tribunal (differently constituted) on 22 October 2019 to give evidence and present arguments .  The applicant confirmed to the Tribunal that he was (then) enrolled in a Diploma of Leadership and Management that he had commenced in October 2018 and was (then) scheduled to complete in April 2020.

14. At the hearing the Tribunal (differently constituted) discussed with the applicant his motive for undertaking study in Australia and his history as a student in Australia.  The applicant stated that he had completed his ‘O’ level studies in Sri Lanka and had worked for approximately 12 months for Sri Lanka Airlines before deciding to study in Australia.  When asked by the Tribunal what he wished to achieve in his studies in Australia the applicant stated that he came to Australia to undertake ‘engineering studies’.  When pressed by the Tribunal as to whether he intended to undertake bachelors-level studies, the applicant stated that he could achieve what he wished with diploma-level studies and that he did not see the need to ‘push’ himself to achieve a bachelor’s degree.

15. In respect of his career objectives, the applicant’s evidence to the Tribunal was that his father runs two ‘gem’ mines in Sri Lanka, the first of which was acquired some 15 years ago.  The applicant stated that he anticipated obtaining appropriate qualifications in Australia so as to work in that business with his father.  He stated to the effect that the second mine was acquired by his father as the applicant’s own project.  To corroborate his claims in this regard, the applicant provided the Tribunal photographs of mine sites and pictures of geological data. 

16. The applicant stated that each of the courses he had undertaken, up to the Diploma of Work Health and Safety (Business Services), were targeted to improve his prospects of successfully running and managing a mining business in Sri Lanka.  The applicant stated that he was on a ‘graduate visa’ between July 2016 before commencing further studies in October 2018.  When pressed by the Tribunal on his reasons for undertaking a Diploma of Leadership and Management at the conclusion of his ‘graduate visa’ the applicant stated that he required management qualifications because he ‘wants to change the whole system’ under which the mines are run.  When pressed by the Tribunal the applicant stated to the effect that the regulations in Sri Lanka required gems mined in the country to be ‘value added’ there before export and that his plan related to implementing a ‘value adding’ process in his business.  He stated to the effect that the Diploma of Leadership and Management would assist him in this process.

17. The applicant provided oral evidence of the mining business, including particulars of the mine sites, their operation and the business model underlying the operation. The applicant also provided evidence of his plans for the future, including his aspiration to ‘scale up’ his mining operation. 

18. The applicant stated in evidence that his parents are resident in Sri Lanka and that his sister is an Australian citizen. 

19. As to the applicant’s present circumstances in Australia, his evidence is that he is presently employed as a ‘Guest Services Agent’ at a Perth Hotel on an annual salary of approximately AUD$23,000. 

20. On 8 April 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.  The information was particularised in the following terms:

    Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment.

21. The invitation went on to state:

    We note that this is consistent with the submission filed on your behalf on 18 October 2019 where you indicated that you intended to return to your home country upon completion of your most recent course of study. We assume that your intentions remain unchanged in this regard.

22. On 20 April 2020 the applicant sought and was granted an extension of 14 days within which to provide his comments or response.

23. On 6 May 2020 the applicant responded to the invitation, providing, inter alia, an ‘International Student Offer and Acceptance Agreement’ for a Bachelor of Business (Leadership and Management) with a scheduled course start date of 20 July 2020 and a scheduled course end date of 23 June 2023. Describing his decision to undertake further studies, the applicant’s agent on 23 June 2020 provided the following submissions on the applicant’s behalf:

    The Applicant has decided to further his studies by enrolling in a degree of Bachelor of Business (Leadership and Management) at Academies Australasia Polytechnic in Victoria. The length of the course is slated to take 3 years to complete or in 6 semesters. The applicant has revisited his current options in his home country of Sri Lanka and he is convinced that getting a Bachelor’s Degree is the right pathway for him to ensure that he stands out amongst the candidates when he enters the job market or when he establishes a business when he goes back to Sri Lanka.

    Our client also maintains the position he stated in his submission of 18 October 2019 that he will return to his home country upon his completion of his course of study. Since he is convinced that a Bachelor degree rather than a Diploma would be more suitable for his future plans, he had to withdraw from his course of Diploma of Leadership and Management. With his future prospects in Sri Lanka foremost in mind, he thus enrolled for a Bachelor Degree in the same field.

24. The applicant appeared before the Tribunal (differently constituted) for a second time on 24 June 2020 to give evidence and present arguments. In connection with this hearing the applicant provided the Tribunal with a valid CoE for a Diploma of Leadership and Management[3] rather than for the bachelor’s degree the subject of the Offer.

    [3] With a scheduled start date of 15 June 2020 and a completion date of 21 February 2021.

1. At the second hearing the applicant stated to the effect that his situation had changed since the first hearing in two respects: firstly, the Sri Lankan government had made changes to the mining industry and that mines such as the applicant’s mine were ‘getting shut down’; and secondly, the COVID-19 pandemic had impacted Sri Lanka and had negatively affected his ability to operate his business there and would be a threat to his health if he returned there.  When pressed as to the impact on his business, the applicant stated that international travel transport to and from Sri Lanka had ceased and that consequently his business would suffer.  When further pressed, the applicant stated that his belief that the Sri Lankan government was ‘hiding’ the severity of the impact of COVID-19 on Sri Lanka for political purposes.  The applicant stated that he wanted to stay in Australia because of the ‘conditions’ in his home country, until the pandemic is ‘sorted’ and he can safely recommence his mining business.

2. In respect of his course enrolment, the applicant stated that he had not completed the Diploma of Leadership and Management that he had been enrolled in at the time of the first hearing and that he had decided to return to Sri Lanka before completing that course.  He stated that with the change in the Sri Lankan government’s attitude to mining and particularly the impact of the COVID-19 pandemic on his business his parents had encouraged him to stay in Australia.  He stated that he then decided to move to Melbourne but was unable to obtain a CoE for a bachelor’s degree (and so the Offer was not taken up) and that he then decided to stay in Perth and re-enrol in a Diploma of Leadership and Management. 

3. The applicant stated that he and his family had made the decision that it is better for him to remain in Australia until the ‘pandemic situation’ in Sri Lanka is normalised.

4. Following the hearing, on 30 June 2020 the applicant provided the following statement as did the applicant’s representative.

   I would like to reiterate what I mentioned in the hearing held last year that I planned to pursue a mining project with my family in Sri Lanka. Certain aspects of this plan depended on the outcome of the elections in Sri Lanka and with the change in government that happened with the last elections in my home country, I was forced to rethink about the plans I had regarding my project. It became harder to obtain mining licenses and since I already invested time, money and effort in it, I was in a quandary on how to proceed further. Towards the latter part of the previous year, I decided to go back to Sri Lanka to handle the project personally. I was advised against this since the policy of the new government made it harder for mining start-ups to flourish, much less survive. I heeded the advice given to me and concluded that putting off my project plans for the time being would be in my best interest.

   During those times, I was spending most of my time and effort into delving about my plans of finally opening up my mining operations in Sri Lanka thus, I had lesser time to focus on my studies. Admittedly, I was mostly distracted with my proposed project in Sri Lanka. With the unexpected changes that occurred in my home country, I had to rethink my whole operation since several options which were previously available to me were no longer available.

   Amidst all of this came the COVID 19 pandemic and with the current situation, I am forced not go to back to Sri Lanka as the major airports are closed. If I am forced to go back to Sri Lanka now, I would be subjected to great risk against my health and even possibly my life. Thus, I stayed in Australia and kept my course at Stanley College. I was however, not able to attend my classes as I was under a lot of emotional stress with my failed project in Sri Lank and the fact that my family in my home country was not able to support my plans. I was not motivated enough to attend my classes since my mind was preoccupied with how I can revive my project in Sri Lanka.

   Due to these reasons I concluded that it would be best for me if I finish my course or even get a Bachelor’s degree to. Thus, I also sought to enroll in an education provider in Melbourne however, due to the restrictions imposed during the pandemic, I surmised it would be best to remain in Perth and actually finish my course of Diploma in Leadership and Management. With a fresh new mindset, I have thus, enrolled for this course with West Australian Institute of Further Studies and I am scheduled to complete this course on the 21st of February 2021.

5. On 30 July 2020 the Tribunal (differently constituted) affirmed the delegate’s decision.

6. On 24 January 2022 the Federal Circuit and Family Court remitted the matter back to the Tribunal to be re-heard on the basis that the Tribunal (differently constituted) misconstrued cl.500.212 as it made the finding that the student visa application was being used to circumvent the migration program solely on the applicant’s motivation to remain in Australia until the Covid pandemic normalises.

7. On 8 June 2022 the Tribunal wrote to the applicant via his representative and invited him to attend a hearing on 24 June 2022.

8. On 21 June 2022 he submitted to the Tribunal COEs dated 20 June 2022 to study a Diploma of Leaderships and Management from 13 August 2022 to 11 August 2023, followed by an Advanced Diploma of Leadership and Management  from 26 August 2023 to 23 August 2024.

9. He provided the following statement:

   I first arrived in Australia as a student on 2 August 2008.

   I acknowledge that I have been in Australia for a long time, longer than most people who come here to study. However, during the time that I have been here I have always been working towards the same goal: to learn enough to successfully run gem mines like my father does.

   I spoke about this goal at my first Tribunal hearing and have provided documents to prove this. My goal has not changed.

   All of my courses between 2008 and 2016 were to give me practical skills in engineering and workplace health & safety, so that I had the technical skills to understand the running of a gem mine.

   I then went onto a graduate visa, but while holding the graduate visa I decided that I needed to improve my business knowledge. I therefore enrolled in a Diploma of Leadership & Management.

   A little while after I enrolled, I changed my mind and decided to return to Sri Lanka after all, so I did not complete the diploma course at that time.

   However, then the COVID-19 pandemic started and there was a change of government in Sri Lanka which made conditions unfavourable for the mining business. I spoke to my parents and they supported me to stay in Australia until the situation normalised. I went back to my plan of studying leadership and management, but decided to enrol in a Bachelor degree so that I could learn as much as possible to help me run the mine back in Sri Lanka when things went back to normal.

   First, I enrolled in a Diploma of Leadership and Management with the intention of switching to a Bachelor Degree when I could.

   When I went to the Tribunal before, I told them honestly that I wanted to stay and study temporarily until the COVID-19 situation improved, rather than saying that my only reason for wanting to stay in Australia was to study. Because of that, the Tribunal decided to affirm the decision to refuse my student visa.

   After the Tribunal rejected my visa, I kept my Confirmation of Enrolment for my diploma course but I didn't really study it. I didn't know how long the court process would take and if I would have enough time to finish the course, and my lawyer told me that while he thought there was a case to fight, it was very difficult and rare to win cases like mine.

   Because of this, I was very surprised when I was told that we won the court case.

   After we won, I was told that my case would go back to the Tribunal and that they would probably make a new decision very quickly compared to how long it took the first time. It would likely take a few months rather than another two years.

   Therefore, I decided not to start studying the diploma course again because I still didn't know if I would succeed at the Tribunal.

   I still want to study the Bachelor level course, but it is very difficult to enrol in a Bachelor Degree course when you have a refused student visa. If the refusal is overturned then I will have a higher chance of being able to enrol in this course.

   While I have been waiting, I have been running a business in Australia organising cleaning and logistics. I have also bought a bar. This has given me some practical experience with running a business, but they are just projects for while I am in Australia and they are not important compared to being able to run my family's gem mines

   When I was last at the Tribunal, I was concerned about the COVID-19 situation in Sri Lanka. Now I am vaccinated and the COVID-19 situation is not as bad, but now the general situation in Sri Lanka is very bad due to the political crisis. It is not a good time for me to return - the mines cannot run properly as there is no fuel available.

   My long-term plan is still the same as it always has been: to return to Sri Lanka to run the gem mines. However, it is not the right time to do that because we cannot currently run the gem mines. It will be better for my family if I stay in Australia for a little while longer and study at least the Diploma of Leadership and Management, and hopefully a Bachelor Degree program in Leadership and Management or similar, so that I can return to Sri Lanka with the advantage of further education in business leadership.

   My family is very resourceful and I am confident that once the immediate crisis is over, we will find a way to get back into a good position so that I can return to the family business. While I am staying in Australia a little while longer, I want to spend my time studying to improve my leadership ability.

10. The applicant appeared before the Tribunal by telephone on 24 June 2022 to give evidence and present arguments. He was assisted with an interpreter in the Sinhala and English languages. His representative attended the hearing.

11. The Tribunal noted that the issue before it is whether he meets the genuine temporary entrant criteria as per cl 500.212. It outlined these requirements and Direction No.69.

12. The applicant confirmed the visas he had previously been granted. He confirmed that he has submitted COEs to study a Diploma of Leaderships and Management from 13 August 2022 to 11 August 2023, followed by an Advanced Diploma of Leadership and Management  from 26 August 2023 to 23 August 2024 but wants also to study a Bachelor of Business. He said that was correct and he could not obtain the COE for the Bachelor course initially. He said he wants to study these courses to assist in managing the mines and for his future. He confirmed he was doing those courses to then transfer to the Bachelor of Business.

13. The applicant claimed he came to Australia in 2008 to study hotel management as his family also had a restaurant in Sri Lanka. He referred to then changing courses to engineering as he was not very good at hotel management and had studied engineering type courses at school. The Tribunal noted the engineering and other courses he completed until July 2016. He confirmed that from that date he had not completed any course and did not study until after he held the subclass 485 visa which ceased on 10 August 2018.

14. He said he graduated from school in Sri Lanka in 2006 and worked at Sri Lanka airlines as a production planner until he departed for Australia.

15. The Tribunal raised with him via the process outlined in s 359AA information as contained in the PRISMS record. It outlined the following information:

    ·He was enrolled in a  Diploma of Leadership and Management from 6 August 2018 to 31 January 2020 then changed to study the same course from 8 October 2018 to 3 April 2020. He did not successfully complete the course.

    ·He then submitted a further COE  to study a Diploma of Leadership and Management from 15 June 2020 to 21 February 2021 and he did not complete the course.

    ·He was not enrolled in any course from 21 February 2021 until he submitted the COEs to begin studying the Diploma of Leaderships and Management on 13 August 2022.

    ·He has not successfully completed any course since July 2016 and has re-enrolled in the same course without completing it.

    ·He had an offer and acceptance to study the Bachelor of Business but never commenced the course.

16. The Tribunal outlined the relevance of the genuine temporary entrant criteria, including a lack of enrolment and lack of course completion.

17. After discussing how he wished to respond with his representative the applicant chose to respond orally at hearing. He said he has been studying all the courses enrolled and had been finishing all the courses enrolled. He said after his matter was refused by the delegate, where he was enrolled to study the Diploma of Leadership and Management from October 2018 to April 2020, Stanley College told him he did not have to come as he did not have a visa, that he can wait but he needed to maintain the COE by paying the school fees. He confirmed he maintained the COE by paying the school fees but did not attend as this is what the school told him. He said he did not successfully complete any subjects and he was attending online courses and the school counsellor told him until he gets the visa, he does not need to attend just pay to maintain the COE.

18. He said he told the Tribunal at the first hearing in October 2019 that he was still enrolled in the Diploma of Leadership and Management but not studying this course. The Tribunal raised that in contrast that he told the Tribunal at the hearing in October 2019 that he was studying the Diploma of Leadership and Management and needed it for his future business.

19. The Tribunal noted the first COE expired on 3 April 2020.

20. The Tribunal noted the s.359A letter sent to him by the Tribunal (differently constituted) on 8 April 2020 and he said that was when he re-enrolled in the above course and also provided an Offer and Acceptance to study a Bachelor of Business on 6 May 2020.

21. He said he then changed providers to study the Diploma of Leadership and Management at a different College from 15 June 2020 to 21 February 2021 in Western Australia. He said he also did not pass any subjects when studying the course there. He said they told him the same thing. He said the student advisor told him to wait, there is no need to come but keep the COE by paying the fees and if he wins the case he can study. He confirmed he did not complete any subjects and did not go as he did not know what would happen.

22. As to which provider he was proposing to study the Bachelor of Business with at that time, there was a long pause, then he said he did not receive an  offer letter as they were saying he could not get it done and he went to study the Diploma course. The Tribunal noted he had submitted to the Tribunal an offer and acceptance to study the Bachelor of Business, but he said he was unaware his previous lawyers submitted this enrolment. He said he has to complete the Diploma before he can study the course. He confirmed he never completed the Diploma as he does not have a secure way and no one told him he had to study and he did not know when or if he was going to be refused. He said he went to the classes the first week and then talked to them when he heard his visa was rejected. He said the provider advised that once he receives an approval, he should come back to the class but until then he just has to pay.

23. The Tribunal noted he was not enrolled in any course until recently even after he was successful at the Court. He noted the same provider renewed his COE.

24. The Tribunal asked why he needed to study a Diploma of Leadership and Management; he said he has an engineering background and that he has 7 gem mines but only 2 are operating at the moment. He said he studied engineering and he saw much. He said not many people can export gemstones in Sri Lanka and that if he wants to go back to that business, he does not have leadership and management.

25. The Tribunal asked him for how long he had known he needed the Diplom of Leadership and Management course to return to run the mines being his future career aim. He said 4 to 5 years. The Tribunal  noted that he had said since about 2017 that he needed the Diploma of Leadership and Management for his future career aim, had been enrolled in the course on a number of occasions yet not completed any course or subject in the last 5 years. He said he did not know when he would be refused and thought he might have to go home. The Tribunal raised as of concern that he had successfully studied while holding bridging visas previously, he had said that he needs the Diploma course for his future career aim, he had been enrolled in the course on a number of occasions yet had not completed any subject or the course. It raised with him that it makes it question whether he is studying for the reasons he claims and is a genuine student. He responded that he did not know and he needed to keep the COE until a decision and no one said anything and he had been waiting. He said what the school told him he did. He said when he won the case, they offered him a  new COE. The Tribunal noted he had had had representatives all along, noted he had been enrolled in that course since 2018 and raised with him it may expect a person who has claimed he needed this course for his future career aim would have studied the course. It raised with him that it questions whether he is genuine student and in Australia for the reasons he claims to study for his future. He said he did not know when they were going to send him home and did not know if he could finish the course.

26. The Tribunal noted that at the first hearing he did not advise that he was just attending and not studying to successfully complete the course. He repeated that the school told him he needs to maintain the COE and he can return once he receives the positive outcome. He said he was helpless and he followed what the school said. The Tribunal noted he had had representatives and questioned why he would not have sought advice from them. He said he paid to maintain the COE; he said if he knew it was going to take that long he would have attended and completed the course. He said if the Tribunal now approves him, he will complete the course as he will have a valid visa. The Tribunal raised with him its concern that a genuine student studying for their future career, would have studied and completed the course particularly as he had repeatedly advised that he needed it for his future career aim. It questioned whether he was studying for the reasons he claims. He said he followed what the school and lawyers told him. He said up to 2016 he paid and passed and when the government did not give him visa, the school told him to maintain the COE which he did but he was told he did not have to go to school.

27. The Tribunal raised as of concern and questioning whether he is a temporary entrant his length of time in Australia, that he had been in Australia for 14 years, arriving in 2008 and wants to study a further 2 years and possibly more to complete the Diploma and Bachelor course. It noted that while for some of the time his matter was before the FFC notwithstanding it is a considerable time and it questions whether he is a temporary entrant. He said he is trying to get up and study. He said things change, businesses change and what he needs for his goal changes.

28. As to his current employment he said he has his own businesses in Australia. He said he has ICONIC Industries, he owns 100% and they do logistics and facility services, such as commercial cleaning. He said he currently has 5 employees. He said he also has a bar, and a liquor license and he employ 3 people. The Tribunal raised as of concern that these businesses in Australia may show a strong connection to Australia and that he is not a  temporary entrant. He said he is allowed to do this, obtain an ABN and that even if he leaves the country, he can still run the businesses from Sri Lanka.

1. As to whether there are any political or civil issues why he cannot return to Sri Lanka; he said he is against President Mahindra Rajapaksa. He said his whole family is against them. He said the people have now kicked him out. The Tribunal asked whether he fears return because of the Rajapaksa regime and he said he cannot run anything because they have ruined the country as there is no diesel, and this affects the gem mines. He said he cannot run the generators. The Tribunal confirmed Mahinda Rajapaksa was the President and now his brother is, and the Tribunal asked whether he could earn a livelihood and he said it will harm his livelihood. As to how long he thinks that this will resolve; he said 1 to 1 ½ years. He said the UNP President took over as Vice President and the country is slowly coming up.

2. The Tribunal asked whether the economic situation is bad for him personally or generally and he said Sri Lanka is never bad for him, he said he has no problem with the place but the people who run the place. It asked whether he would be targeted on return; he said he might be targeted and people with money can target. He said Governors and other people may target him. He said he would be targeted for money. He said he will be unable to do his gem business. He said they will try and rob him. The Tribunal raised with him that it may show that under cl 500.212 that he is not a genuine temporary entrant as in Australia he has 2 businesses and he is saying he will be targeted and cannot earn a livelihood in his business in Sri Lanka if he returns. He said people are facing the problem and it will change. He said the only the problem is the government steals money from the people. He said he was running the businesses and he has businesses in hotels.

3. The Tribunal asked him about the mines, and he said while 2 can operate they have shut them, as there is no gun powder, petrol and equipment.

4. The Tribunal asked him what gems are mined and he referred to sapphires and when it asked him the name of the family gem mines; he said they did not have a name. The Tribunal referred to the licenses and asked what the mines were called; he said it is under his name. He said it is just a license and doesn’t need a name. He said they mine sapphires, rubies and yellow sapphires. It asked him again the name of mines and where they are situated and he said one was in Rathnapura and the second one in Ahaliagoda. It again asked him whether these mines had a name and he answered in the negative. He confirmed the license was in his name and the Tribunal questioned this evidence as he had said the mines were owned by his family, not him and he said his father can give it to him. He said his father gave him the licenses and the Tribunal raised with him that he had said the mine business was run and owed by his parents. He said his parents and family have many businesses. He said he asked his father and they gave him the 2 mines. The Tribunal questioned why if his father started these mines, and the applicant had never worked there why they are now owned by him and the license is now in his name; he said in Sri Lanka the family gives their assets to the children.

5. The Tribunal raised with him as of concern why he now wants to study a Bachelor of Business after so many years for his future career aim of running the mines. It questioned whether he wants to study for any value to his future. He said if he had put all the money into a business rather than into studying the Diploma course, he would have been able to obtain a  business visa. He said if he wanted to stay, he could have married a girl from Australia but he has not done  that but he could of if he wanted to stay. He said many of his friends had done that.

6. The Tribunal asked why he had not previously worked in the mining industry in Australia if he was in Australia to enhance his study and knowledge to run his gem mines on return. He said he visited many places but they would not hire him. He said he worked in Chevron but they did not pay him. He said he visited mines and when the Tribunal asked who he applied to and which mines he visited, he said while studying engineering he learnt about electrical vehicles. The Tribunal asked again who he visited and applied to for mining work, as he had said he had done that. He said he applied to Chevron for drafting and planning. He confirmed he applied to Chevron as a drafting engineer in or around 2017, after he graduated from mechanical engineering. The Tribunal again asked whether he had applied to  any mines as it is his aim to return to Sri Lanka to manage and run mines. He said the Sri Lanka mines are very different. He said Sri Lanka mines are pit mines and his mines only work for 6 people in one hole whereas the Australian mines are huge. The Tribunal raised with him that it may expect that if he is studying to enhance his gem mining business on return that he would work in the Australian mining business to assist his future career aim, enhance his skills and assist his future career aim. He said he had been to Sri Lanka many times and many times he worked on the mines as many things happen that need fixing.

7. The Tribunal again questioned why he need to complete a Bachelor of Business after so many years in Australia when he had previously said that he only needs the Diploma of Leadership and Management to run the mines. He said he wants a degree for the business; he said more than the gem mines family status matters to his relatives. He referred to family members who had a degree and he had none.

8. He confirmed that he once applied to Chevron, a car maker and never applied for a mining job in Australia as the mines in Australia are different in Australia being huge, whereas the mines in Sri Lanka are pit mines and much smaller and different operations. He referred to the pictures he had previously submitted.

9. He said he will return once he finishes his study.

10. He said his sister, aunt and uncle live in Australia. He said most of his mother’s side are in Australia. The Tribunal raised with him that this may show he has a greater  connection to Australia than Sri Lanka and he may not be a temporary entrant. He said he has a connection here but he has many people back home and he has his 9 Aunties and many other family members in Sri Lanka.

11. As to whether he owns any property in Sri Lanka, he said he will be his but it is not in his name. He said they had 5 acres of coconuts and other property but it is in his parents’ name.

12. He said both his parents live on the pension and they live on the coconut farm proceeds.

13. The Tribunal asked who runs the mines; he said they are presently shut as the situation in the country is bad. He said they shut when they had the terrorist attack in Sri Lanka; and the applicant agreed that was in Easter 2019. He said they had not run for 2 ½ years and they do not have petrol for generators and other equipment. The Tribunal raised with him that at the hearings in October 2019 and early 2020 he had never said all the mines were shut. He said the new government was changed about 2 years ago and after the government changed, they did not receive tools from other countries. He said that also there were no tourists to buy gems. He said there is no one to sell them too and he said people stopped mining  as there is no one to sell.

14. The Tribunal raised with him that if the mines have been shut for almost 2 ½  years why he wants to study a Bachelor of Business to manage those mines on return. He said the pit mines return about 14 stones per week and they go to main buyers who export the gems. He said he talked to people in Australia who send people to obtain gems in Sri Lanka. He said they are worried they are being robbed in Sri Lanka with fake stones. He said he wants to obtain an export license. He said in Sri Lanka a license is needed at all stages from mining, cutting and exporting. He said if he can complete the business degree, he can take his stones all over the world without a middleman.

15. He said he is not in a  relationship in Australia

16. He said there are no military commitments on return to Sri Lanka.

17. He said he last returned in 2019 to Sri Lanka for his best friend’s wedding.

18. The Tribunal asked both the applicant and the representative whether they had anything to add and both responded in the negative.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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 he meets cl 500.212.

21. 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.

22. 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.

23. 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.

24. Having considered the applicant’s claims against all the factors specified in Direction No. 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

25. As to the applicant’s circumstances in his home country, there is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts his evidence as to why he chose and chooses to study in Australia and not Sri Lanka, and the benefits of an Australian education on return to Sri Lanka. The Tribunal accepts that he has close family ties in Sri Lanka, including his parents who are becoming old and who he has the responsibility to take care of. It accepts he also has nine aunts and many relatives in Sri Lanka. It accepts he is in regular contact with his family in Sri Lanka and has returned on numerous occasions to visit them as well as his friends, including returning to a wedding in Sri Lanka. While it notes his sister and uncle are in Australia it accepts he has stronger family ties in Sri Lanka.  It accepts, other than his new claim to own mines in Sri Lanka, which is considered below,  he does not own assets and property in Sri Lanka but his parents do, including bank assets, gem mines and a coconut plantation and he will inherit this property. There is no evidence he is currently in a relationship in Australia. The Tribunal accepts that these circumstances in Sri Lanka are indicative of a person who is only a temporary entrant who has an incentive to return to Sri Lanka.

26. As to whether the political and civil unrest in Sri Lanka would result in the applicant choosing to remain in Australia indefinitely, he said that he is against President Rajapaksa and the Tribunal notes, as raised at hearing that he is no longer the President. It notes he indicated that he will be targeted for money and he will be unable to earn a livelihood. As the Tribunal views the political and economic situation in Sri Lanka as only a temporary consideration, likely to change and possibly improve  it does not consider it a factor indicating he is not a temporary entrant. Similarly, it has considered his previous claim that he was unable to return due to the Covid pandemic but is of the view this no longer acts as a disincentive for the applicant to return.

27. Of concern is the applicant’s economic circumstances relative to his home country and Australia. In Australia the applicant owns and runs a cleaning and logistics business as well as a bar and employs five people. As to his future employment in Sri Lanka, he has repeatedly indicated that he is in Australia to study to return and successfully manage and run the gem mines; however due to the present political and economic upheaval in Sri Lanka he claims the mines cannot run as there is no fuel or diesel  available, there are no tourists to sell the gems too and he cannot earn a livelihood. He claims they have not run for 2 ½ years at the recent Tribunal hearing and are shut. It notes in his submission dated 30 June 2020 he refers to the difficulty obtaining licenses and heeding advice not to return as the policy of the new government is making it harder for mining start-ups to flourish and his evidence at the 24 June 2020 Tribunal hearing that mines, such as his family’s, are being shut down due to government policy. While the Tribunal views the political and economic situation, including the lack of fuel and tourists, in Sri Lanka as only a temporary consideration, likely to change and improve  it considers his economic situation and the ownership of two business as a significant tie to Australia, especially as it is of the view, as outlined below that the applicant is not in Australia studying or learning to run a  successful mining business or for any of the reasons he claims. The Tribunal has considered his claim that his Australian businesses are just projects while he is in Australia, are not important compared to running the family mine and he can run these businesses from Sri Lanka if he returns but does not accept this claim particularly when it has concerns as to whether it is his aim to return and run a gem mine. The Tribunal views the ownership of two businesses with 5 employees as indicating a stronger tie to Australia relative to Sri Lanka and that it may indicate he is not a temporary entrant.

28. The above information indicates the applicant has been in Australia since 2 August 2008 a period of 14 years and that he wishes to continue to study to  August 2024 staying for 16 years. He has indicated that he would like to stay further than this and undertake a bachelor course following completion of the Advanced Diploma of Leadership and Management in August 2024. The Tribunal views his extended length of stay in Australia and remaining in Australia for over 14 years, wishing to remain for 16 years, and beyond to study the bachelor course as indicative of a person who does not intend to genuinely stay in Australia temporarily. In making this finding the Tribunal notes he has returned to Sri Lanka on a number of occasions. The Tribunal, however, does not accept that these short trips, albeit numerous to Sri Lanka over the extended period he has been in Australia as undermining its concern that his extended length of stay in Australia of 14  years and his wish to extend this stay to 16 years, and perhaps more to study a bachelor’s course, may lead it to find he does not genuinely intend to stay in Australia temporarily. In making this finding it has considered his length of time in Australia may have been extended by the application to and remittal by the Federal  Circuit Court and the difficulty returning because of Covid but is of the view notwithstanding this, that his extended length of stay in Australia  is a factor indicating he does not genuinely intend to stay in Australia temporarily.

29. The Tribunal accepts that the applicant is currently enrolled and studying a Diploma of Leadership and Management from 13 August 2022 to 11 August 2023, followed by an Advanced Diploma of Leadership and Management from 26 August 2023 to 23 August 2024. It accepts he has knowledge of these course and the relevant education provider. It accepts he previously successfully completed an English course from August 2008 to September 2008, a Certificate IV in University Foundation Studies from February 2009 to June 2010, a Diploma of Engineering from January 2011 to June 2011, a Diploma of engineering Technical (mechanical) from June 2011 to January 2012, a Diploma of Civil Construction from July 2012 to December 2012, an Advanced Diploma of Civil Design from Janaury 2013 to December 2013, and a Certificate IV and Diploma in Work, Health and Safety from April 2014 to  July 2016. It accepts the enrolment in these courses is consistent with his level of education, and particularly his wish to complete a higher-level bachelor course.

30. While the Tribunal accepts enrolment and the successful completion of courses in the periods, including knowledge of the courses above while holding and applying for a student visa is indicative of a genuine student, it views his study history since his application for the current visa on 8 August 2018 with a lack of enrolment and course completion as of significant concern. In making this finding it notes the applicant was the holder of a subclass 485 visa for a year before applying for the current visa and does not make any adverse finding or conclusion as to his lack of study or course progress while the holder of that visa.

31. In particular, as raised with the applicant via s. 359AA, the evidence from PRISMS record and the applicant indicates the following enrolment and course completion record since the application for the visa on 8 August 2018 is as follows:

    ·He was enrolled in a  Diploma of Leadership and Management from 6 August 2018 to 31 January 2020 then changed to study the same course from 8 October 2018 to 3 April 2020. He did not successfully complete the course.

    ·He then submitted a further COE  to study a Diploma of Leadership and Management from 15 June 2020 to 21 February 2021 and he did not complete the course.

    ·He was not enrolled in any course from 21 February 2021 until he submitted the COE to begin studying the Diploma of Leaderships and Management on 13 August 2022.

    ·He has not successfully completed any course since the application for the visa and has re-enrolled in the same course without completing it.

32. While there may be good reason for it, for the reasons below, the Tribunal is not satisfied on the evidence before it that he has provided credible evidence as to the reasons for his poor course progression and lack of enrolment, particularly as it is his claim he is in Australia to study for his future career aim, running the mines on return to Sri Lanka.

1. As to why he did not successfully finish the  Diploma of Leadership and Management enrolled from 8 October 2018 to 3 April 2020, or any subject the applicant has provided numerous and contrasting explanations. At the recent Tribunal hearing, when asked why he did not successfully complete this course he said that after his matter was refused by the delegate, his education provider, Stanley College, told him he did not have to come as he did not have a visa, that he can wait but he needed to maintain the COE by paying the school fees. He confirmed he maintained the COE by paying the school fees but did not attend as this is what the school told him. He said he did not successfully complete any subjects and he was attending online courses and the school counsellor told him until he gets the visa, he does not need to attend just pay to maintain the COE. He also said he gave this evidence at the first hearing at the Tribunal on 22 October 2019 that he was still enrolled but not studying. However as raised with the applicant, in contrast, at the first hearing  on 22 October 2019 he advised he was studying the Diploma of Leadership and Management and would complete it by April 2020. At the second hearing in 2020 he had said he had not successfully completed the course as he had decided to return home before completing the course. In a post hearing submission, he indicated that he did not complete the course as he was spending most of his effort and time delving into his plans for the mine and had less time to focus on his studies and with the unexpected changes in Sri Lanka and Covid  he had to rethink the whole operation. He said he was under a lot of stress and not able to attend his classes and because of what was happening in Sri Lanka he was not motivated to attend classes.

2. The Tribunal views the inconsistencies as to why he did not achieve course progress and successfully complete this course to be significant. It is of the view if he is a genuine student and did not study, he would be consistent as to those reasons. Further, while  it accepts the Covid pandemic and lockdown occurred in or around March 2020, and study may have been affected, and there may have been difficulties in Sri Lanka in 2020 including policy changes towards mining, as he has not passed a single subject since he commenced studying the course in 2018, it does not accept these as reasons for his lack of achieving course progress and successfully completing the course. The Tribunal is of the view if the applicant was  enrolled and studying this course for his future career aim as he has continuously claimed since the application for the visa, he would have successfully completed the course notwithstanding any of the reasons he claims or advice from the College.  His lack of genuine study and achieving course progress in the Diploma of Leadership and Management when enrolled from 2018 undermines his claim he is a genuine student studying for any value to his future or for any of the reasons he claims.

3. At the recent hearing the  applicant  said he then changed providers to study the Diploma of Leadership and Management at a different College from 15 June 2020 to 21 February 2021. He said he also did not pass any subjects when studying the course again. He said the education provider told him the same thing. He said the student advisor told him to wait, there is no need to come but keep the COE by paying the fees and if he wins the case he can study. He confirmed he did not complete any subjects and did not go as he did not know what would happen. He confirmed he never completed the Diploma as he does not have a secure way and no one told him he had to study and he did not know when or if his visa was going to be refused. He said he went to the classes the first week and then talked to them when he heard his visa was rejected. He said the provider advised that once he receives an approval, he should come back to the classes but until then he just has to pay. The Tribunal  is of the view if the applicant was enrolled and studying this course for his future, he would have successfully studied and completed the course obtaining the knowledge he claims he needs to return to run the mine notwithstanding any advice from the student advisor or anyone else or as no one told him he had to study or as he did not know whether his visa was going to be refused. His lack of genuine study and achieving course progress in the Diploma of Leadership and Management when enrolled from 2020 undermines his claim he is a genuine student studying for any value to his future or for any of the reasons he claims.

4. The Tribunal also views as of concern his lack of enrolment in any course from 21 February 2021 until he submitted the COE dated 20 June 2022 to begin studying the Diploma of Leadership and Management on 13 August 2022. It has considered his evidence that he did not know he needed to have a COE and no one said anything and he had been waiting. He said what the school told him he did. He said when he won the case, they offered him a  new COE. While it accepts he had a matter before the Federal Court and he did not know how long the matter would take, whether he could finish the course and whether he would win and would have to go home; the Tribunal is of the view that if the applicant is in Australia to study to obtain knowledge to run his mining business he would have used the time to gain knowledge, which is what he claims he needs to run the mine business notwithstanding he was awaiting the Federal Court outcome and was not the holder of a substantive visa. This is particularly so as from January 2022 the evidence indicates the Federal Court matter was resolved in his favour; however, he did not enrol until just prior to the Tribunal hearing. It also does not accept he did not study as he did what his lawyers and the schools told him to do; as it is of the view if he is in Australia to study to obtain knowledge for his future; he would have studied not remained without enrolment from February 2021 to June 2022.

5. The Tribunal therefore does not accept that his poor course progression and lack of enrolment was due to the reason he claims. The Tribunal is therefore of the view that the applicant’s lack of course progress and enrolment in the above period indicates he is using the student visa program to maintain residence, not as a genuine student.

6. Adding to its concern, for the reasons that follow, the Tribunal does not accept he is enrolled and studying or wants to enrol in the bachelor course for any value to his future and is using the student visa programme to circumvent the intention of the migration programme.

7. Central to the applicant’s claim as to why he is and has enrolled in the leadership and management courses and why he wants to study a bachelor course is that his aim is to return to Sri Lanka to run and be business manager of the mines. However, he has provided the following inconsistent evidence as to who owns the mines which the Tribunal views as undermining his claim that he is in Australia studying for any value to his future and for the reasons he claims. To the Department in his application, he indicated that in 2017 his parents set up a family business in gemstone mining, and to succeed in the role of business manager he needs to learn effective leadership skills. He noted to the Tribunal (differently constituted) in October 2019 that his father runs two gem mines, one acquired 15 years ago and the second acquired to be the applicant’s project. He has repeatedly referred to returning to run the family mines. However, at the recent Tribunal hearing he said and confirmed that the mining licenses are under his name and when the Tribunal questioned this evidence as he had previously said the mines were owned by his family, particularly his parents and father, not him; he said his father gave it to him. He said his father gave him the licenses. He said he asked his father and they gave him the 2 mines. The Tribunal views this inconsistency as of concern and is of the view if his father had given him the mines since the 2020 hearing he would have indicated this in his pre-hearing submission submitted before the recent hearing.  It also has difficulty accepting that as the applicant has not returned since 2017 and his plan is not to return for  some years, particularly if he completes a bachelor course, that his father would give him the mines and the license. It views as of concern when asked at the recent Tribunal hearing whether he owns any property in Sri Lanka why he did not refer to ownership of the mines. Rather, he said he will own property but it is not in his name. He said his parents had 5 acres of coconuts and other property but it is in his parents’ name.

8. The Tribunal also views as of concern that if he is in Australia to study to successfully run a mine on return why he has not worked in that industry in Australia, particularly when he held a subclass 485 visa and since. Rather, the evidence indicates he has worked at the hotel since 2012 and now owns 2 business in Australia. In his 27 September 2018 submission to the Tribunal, he indicated he had applied for internships and job vacancies as a Civil Engineering Draftsperson. He said throughout 2017 he applied for jobs but failed to find one. While at the recent hearing, he initially said he had  visited many paces but they would not hire him, when the Tribunal pressed the applicant for further detail as to who he visited and applied for mine work; he referred to applying to the carmaker Chevron for work as a draft engineer. When the Tribunal asked him whether he had sought work in any mines in Australia; he advised that mines in Australia are very different to those in Sri Lanka, then confirmed that he had never applied for a mining job in Australia. While the Tribunal accepts that mining in Sri Lanka may be technically different and they may be of a different size, the Tribunal is of the view if the applicant is in Australia, as he has repeatedly claimed to study and gain knowledge to successfully run and manage a mining baseness, he would have sought work in the mining industry in Australia and not just applied for one position with Chevron. This is particularly so due to his length of time in Australia. While he has indicated he had applied for numerous positions, the Tribunal places more weight on his oral evidence at hearing when details were asked and he then indicated he had only applied to Chevron. This adds to the fining the applicant is not genuine in his claim that he is in Australia to study with the purpose of gaining knowledge to run a mine business on return.

9. While the Tribunal accepts that his family may own gem mines and that he has been able to provide detailed evidence about gem mining in Sri Lanka, it does not accept he owns any, due to the inconsistency above and that he is studying the current courses or wants to study a bachelor course or nay course for any of the reasons he claims, including to run these mines on return; rather it is of the view he is enrolled and studying to extend his stay in Australia and is using the student visa programme to maintain ongoing residence.

100.   The Tribunal has also considered that he wants to complete a bachelor’s degree as family status matters and that many family members have one but is of the view he would have raised this prior to the recent Tribunal hearing, and not repeatedly previously  indicated that he only needs to complete the Diploma of Leadership and Management.

101.   In making this finding the Tribunal accepts that completion of the courses and a bachelor course, if he enrols in one as he claims, will assist him to obtain employment or improve his employment prospects generally in business, however for the reasons above it does not accept he has enrolled in these courses for this reason or for any of the reasons he claims.

102.   In making this finding the Tribunal has considered his knowledge of living in Australia, including having lived with his sister for some time but makes no adverse finding on this basis in considering whether he is a genuine temporary entrant.

103.   As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2008 or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas. It has above considered his length of time in Australia.

104.   In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, and the manner in which responses can differ depending on the nature of and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

105.   In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled and studying and says he will complete these courses, he says he will now complete the courses as he will have a valid visa, he has stronger family ties in  Sri Lanka than in Australia, his evidence he will return home and is a temporary entrant, any mental difficulties he faced which rendered him unable to study, his past study record prior to the application for the current visa, if he wanted to stay he could have married a girl from Australia but he has not done that but he could of if he wanted to stay, that if he had put all the money into a business rather than into studying the Diploma course he would have been able to obtain a  business visa and all the other evidence he has submitted; however, for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student visa program is only being used to maintain ongoing residence.

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

107. 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.

108.   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

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

Gabrielle Cullen
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;

d.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

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.