BAHARI (Migration)

[2020] AATA 1831

BAHARI (Migration) [2020] AATA 1831 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SARINA BAHARI

CASE NUMBER:  1808260

HOME AFFAIRS REFERENCE(S):          BCC2018/990208

MEMBER:Vanessa Plain

DATE:10 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2020 at 5:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –   genuine temporary entrant criterion not met – applicant did not provide a GTE statement – extensive visitor visa history – use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211, 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 6 March 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 1 March 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared before the Tribunal on 4 March 2020 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student.

8. 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?

9. 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.

10. 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.

    Entry and Visa History

11. The applicant in this case is a 43 year-old Malaysian female who first arrived in Australia on 12 January 2017 on a visitor visa subclass UD 601 valid for 3 months duration.  The applicant stayed on shore for 2 months and left Australia on 11 March 2017. 

12. The applicant returned to Australia 28 June 2017 on another visitor visa and stayed for 3 months, leaving on 23 September 2017.

13. The applicant returned to Australia again on 29 December 2017 on another visitor visa, stayed for another 2 months.

14. On 1 March 2018, while onshore, she applied for a student visa, the subject of this application. 

    Time Onshore

15. The applicant is currently enrolled in a Diploma of Leadership and Management, followed by an Advanced Diploma of Leadership and Management, which is scheduled to conclude in March 2021.     

16. Since applying for her student visa in Australia, the applicant has not returned home. 

    Study History and Work History

17. Prior to arriving in Australia, the applicant completed school in her home country and worked as a food and beverage manager.

    ·Since arriving in Australia, the applicant has completed a Certificate III and IV in English and is currently enrolled in a Diploma of Leadership and Management.   

    Evidence in support of application

18. The applicant did not provide a GTE statement in support of her review application.  She provided a response to request for information, together with various academic documents evidencing her completion of English studies.  The Tribunal has considered these documents, together with the applicant’s oral evidence at hearing. 

    Applicant’s circumstances in their home country  

19. The Tribunal has had regard to the applicant’s circumstances in her home country, as follows:

    Reasons for not studying in home country

    ·The applicant is not studying in her home country because she contends that the Australian education is up to standard and she a migration agent informed her she is eligible to apply for a student visa onshore

    Personal ties to home country

    ·As to the applicant’s personal ties to Malaysia, her parents and brother live in Malaysia.    

    ·The applicant gave no evidence of ownership of assets in Malaysia. 

    ·The applicant has not returned home to visit her family since applying for a student visa onshore.

    Economic circumstances in Australia as incentive not to return home

    ·The applicant contends that she is not working but is living off an inheritance 

    Military service or civil/political unrest concerns in home country

    ·The applicant has no such concerns.

20. The Tribunal finds that the applicant has failed to demonstrate that she has undertaken any significant research into the availability of the course in her home country, which is not behaviour consistent with a genuine student

21. Although the Tribunal acknowledges that the applicant has immediate family in Malaysia, the Tribunal is concerned that they do not represent a significant incentive to return there, given that the applicant has not returned to visit her family since obtaining her student visa, obtained after spending approximately 9 months in Australia on three separate visitor visa. 

22. The Tribunal is concerned that there is no evidence of any financial ties to Malaysia demonstrate by the applicant that would provide an incentive for her to return to Malaysia.

23. Although the Tribunal acknowledges that the applicant does not appear to have economic reasons to stay in Australia, it is concerned by the fact that she has visited Australia for approximately 9 months on three separate visitor visas, before applying for a student visa onshore, in circumstances where she has not objectively explained the reasoning for her change in travel plans.  The Tribunal informed the application that this might be the reason or part of the reason for affirming the Delegate’s decision.

24. The applicant stated that she was visiting relatives and friends on the times she entered Australia as a tourist, then she applied to be a student.  She says that her relatives no longer live in Australia. 

25. While the Tribunal accepts that individuals may choose to alter their travel plans, the Tribunal cannot be satisfied that it is he conduct of a genuine student, to visit a country on several different visitor visas over the course of 9 months, before applying onshore for a student visa, without providing any objective evidence of research into education providers in one’s home country or reasonable explanations for a change in travel plans.    

    Applicant’s potential circumstances in Australia  

26. The Tribunal has had regard to the applicant’s potential circumstances in Australia.  The applicant contends that she became familiar with her course provider on the advice of agents and international friends. 

27. There is no evidence before the Tribunal of substantial ties to the Australia community.

28. The Tribunal concludes that the applicant has not undertaken any independent research into her education provider, which is curious given that she has spent approximately 9 months in Australia as a visitor, before applying to be a student.  She has not displayed any significant research into her proposed course, course contents or educational objectives.  The Tribunal is concerned that this is not the conduct of a genuine student seeking to remain in Australia temporarily.

    Value of the course to the applicant’s future

29. The Tribunal has had regard to the value of the courses of study to the applicant’s future.  The applicant contends that she wishes to return home and apply for a managerial role in a huge company.

30. There is no evidence before the Tribunal of expected salary the applicant might be expecting to make as a result of obtaining her qualification in Leadership and Management.

31. The applicant has not provided any evidence or sought to explain the relevance of her current course to her previous education or previous job history. 

32. The Tribunal is not satisfied that the applicant has demonstrated the value of the proposed course to her future .  The Tribunal is unable to accept the applicant’s mere assertions as to the value of the course to her future as she has not provided any objective evidence as to how the completion of her current course will add value to her earning capacity.

33. Further, the applicant has not demonstrated that she has undertaken any reasonable level of research into work opportunities in her home country.  This is not conduct consistent with a genuine student.

34. Given the applicant’s lack of evidence as the to the value of her current course to her future, the Tribunal cannot be satisfied that the applicant has objectively demonstrated that the completion of the nominated course of study will improve her remuneration or employment prospects in her home country to an extent that is outweighed by the current cost of completing the course.      

    Immigration history

35. The Tribunal has had regard to the applicant’s immigration history.  The Tribunal has serious concerns that the applicant is not a genuine student, evidenced by her extensive visitor visa history prior to her onshore application for a student visa, in circumstances where she has not provided a reasonable explanation for her change in travel plans.          

36. The Tribunal does not find this behaviour to be consistent with that of a genuine student who intends to remain in Australia temporarily.  Rather, the Tribunal finds that this behaviour demonstrates an intention to use the student migration program to maintain ongoing residence in Australia.    

    Any other relevant matters

37. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

    ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

38. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.   

39. Although the applicant provided information to the Tribunal demonstrating that she has successfully completed English studies undertaken to date, considering all the circumstances and all the evidence before the Tribunal, the Tribunal does not accept the applicant’s claims to be those of a genuine temporary entrant.

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

41. 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.

42. 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

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

    Vanessa Plain
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

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

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

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

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

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

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

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

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

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

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

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

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

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

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.