Bahri (Migration)

[2019] AATA 5438

Bahri (Migration) [2019] AATA 5438 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamad Nuzul Bahri

CASE NUMBER:  1721690

HOME AFFAIRS REFERENCE(S):          BCC2017/2229151

MEMBER:Damian Creedon

DATE:24 July 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 24 July 2019 at 5:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Advanced Diploma of Leadership and Management – genuinely intends to stay in Australia temporarily – course consistent with work experience, past education and qualifications – potential to enhance employment – incentive to return home country – strong personal ties to home country – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 June 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. On 2 April 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about the course(s) of study he is undertaking and his entry and stay in Australia as a student. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing within the prescribed period, ending 16 April 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. In his response, the applicant indicated that he consents to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant.

2. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 46-year-old Indonesian national who first arrived in Australia on 30 May 2017 as the holder of a Tourist (FA600) visa. 

3. The delegate’s decision record notes the following relevant information in respect of the applicant:

   You declared on your incoming passenger card that you were entering Australia for a holiday and your usual occupation as financial.

4. The applicant provided an undated written statement addressing the Genuine Temporary Entrant criterion to the Department (GTE Statement).[1]  The GTE Statement will be referred to by the Tribunal in its analysis below.

   [1] See Department file, folios 36 and 37.

5. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

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

Course Name	Date Commenced	Date Completed
General English	06/2017	09/2017
Diploma of Project Management	10/2017	10/2018

1. The applicant’s evidence is that he is presently studying an Advanced Diploma of Leadership and Management which he commenced in November 2018 and is due to complete in November 2019.

Analysis and findings

1. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

2. In his GTE Statement the applicant states that his motive in seeking to study in Australia is because it was “some of the best universities and colleges in the world” where “people from all over the world come to study”.  He also states that the “level of education in Australia” is higher than in Indonesia, and that Australian qualifications are highly regarded there.  He states to the effect that he enjoys studying and is interested to expand his knowledge base.  He states that he learned English in Indonesia, but needs to “take it to the next level” if he wishes to study in Australia. Of primary importance to the applicant is Australia’s geographical proximity to Indonesia as he has extensive family there and wishes to maintain regular visits and contact.  Of themselves, although they are somewhat generic, these reasons suggest a rational and reasonable motive for a student to choose to study, and for an international student to choose to do so Australia rather than their home country and they do not cause the Tribunal particular concern.

3. In his evidence to the Tribunal the applicant states that his most recent work experience has been as an Assistance Manager at the Center for International Forestry Research (between 2004 and 2015) and as a Financial Manager for PT. ABBA LORINA LAMTAMA (from March 2015 to the present).  He states that between 2009 and 2015 he completed a Bachelor’s Degree at Pamulang University, Indonesia, as well as a number of less formal qualifications over several years.[2] The Tribunal has no reason to doubt this evidence and it is against this professional and academic background that the applicant’s claims in respect of his future career prospects must be assessed.  In his evidence to the Tribunal the applicant states that he undertook his present study pathway at the request of his employer.  He states to the effect that his employer wishes to take advantage of his previous work experience managing projects and to evolve his present role as “financial manager” into that of “project manager”.  He states that he is proposing further studies in project management should his visa application be successful.  He states explicitly that in his evidence to the Tribunal that his future plans involve:

   Managing some current and future projects in Indonesia with the current employer and some personal projects under my own company.  Therefore Project Management certification will be a key role to my future plans.

   And that:

   My current annual remuneration is 35000 (AU$) with the change in responsibility from financial department to project department I would expect to make up to 55000(AU$) annually both from my current employer and my own company.

   [2] The applicant provided the Tribunal with documentary evidence of his degree and qualifications.

4. It is of some concern to the Tribunal that, in his GTE Statement, the applicant makes no mention of these plans.  His evidence in that statement is to the effect that he wishes to obtain formal qualifications in project management and to then return to Indonesia and “apply for a position in [the] Project Management industry”; he further states he will “apply for position on higher level [sic]” to “bigger companies” where he can “request higher wages”.  In seeking to reconcile these expressions of his future employment prospects and plans the Tribunal is mindful that it must allow for reasonable changes to career and study pathways.  With this injunction in mind, the Tribunal is persuaded that the applicant’s proposed course of study is consistent with his work experience and his past education and qualifications and that, on balance, it has the potential to enhance his employment prospects in the future in the manner he suggests in his most recent evidence to the Tribunal.  Due to the inconsistency in the applicant’s expressions of his future intentions, the Tribunal places less weight on these factors in his favour than it otherwise would but nonetheless weighs them modestly in his favour.

5. The applicant’s evidence is that his wife and three children reside in Indonesia.  His evidence is that he returned to Indonesia for family visits in 2017 and 2018.  He also states that the last time he saw his family was in January 2019, from which the Tribunal infers that the applicant’s family travelled to visit him in Australia.  The applicant states that that his wife works for the Indonesian Government and that the family own significant moveable and immovable assets in Indonesia including “houses” to the value of AUD$200,000 and AUD$80,000 in savings.   The Tribunal accepts that these personal ties provide a strong incentive for the applicant to return to Indonesia at the conclusion of his studies.

6. There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.  There is also no evidence that the applicant is seeking to establish a career in Australia or that he has community or social ties inconsistent with those of genuine international student.

7. There is no evidence before the Tribunal that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

8. In addition to the factors set out above, the Tribunal has also turned its mind, and had regard, to the following factors as a guide to assessing the GTE criterion in this case:

   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 (as opposed to reasons why he wishes to study in Australia);

   b.     the applicant’s circumstances in their home country relative to the circumstances of others in that country.

9. There is no evidence or information available to the Tribunal in respect of these factors as they apply to guide a decision the applicant’s case. 

10. The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

11. In weighing the available information the Tribunal has taken care to draw no inferences adverse or unfavourable to the applicant from any absence(s) of evidence or information.  That said, in the absence of evidence or information pertaining to a relevant factor or factors it is impossible for the Tribunal to weigh those factors in the applicant’s favour.

12. The Tribunal notes that the applicant did not address the delegate’s concern as to his entrance onshore via a Tourist visa.  Notwithstanding this, the Tribunal considers that the applicant has demonstrated that his past work experience in his home country is directly relevant to his proposed courses of study; it also accepts that his proposed qualifications will formalise that work experience and thereby enhance his employment prospects in Indonesia.  For the reasons set out above, the Tribunal’s concern as to the manner of expression of the applicant’s future plans is not sufficient for it to totally discount the weight of those factors in his favour.  Further it is apparent that the applicant has undertaken and successfully pursued his studies to date in a manner consistent with his stated intentions some two years ago.  The Tribunal also accepts that the applicant has strong personal ties to his home country providing him with an incentive to return there at the conclusion of his studies.

13. Overall the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.

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

15. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

16. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon
Member

Attachment – Direction No.69

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

(Section 499)

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

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

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

Part 1 of Direction No. 69 - Preliminary

Name of Direction

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

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

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

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

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

Regulations mean the Migration Regulations 1994.

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

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

Student visa means a Subclass 500 (Student) visa

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

Application

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

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

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

Preamble

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

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

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

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

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

d.any other relevant matter.

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

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

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

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

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

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

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

The applicant’s circumstances in their home country

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

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

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

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

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

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

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

The applicant’s potential circumstances in Australia

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

   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

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

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

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

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

The applicant's immigration history

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

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

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

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

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

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

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

   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

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

Any other relevant matters

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