Bandaranayake (Migration)

Bandaranayake (Migration) [2020] AATA 5792 (7 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Anusha Nuwan Bandaranayake
Mrs Dinushi Lanka Madumali Kulathunge Mudiyanselage
CASE NUMBER:  1931330
HOME AFFAIRS REFERENCE(S):          BCC2019/4331230
MEMBER:Stephen Witts
DATE:7 October 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 07 October 2020 at 2:27pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–in Australia for 10 years– genuine temporary entrant criterion not met–no positive study outcome– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 October 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 30 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.
The applicants appeared before the Tribunal on 6 October 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. 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 genuinely intends to stay in Australia temporarily.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, 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.
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.
At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.
According to the delegate’s decision record dated 14 October 2019, provided to the Tribunal by the applicant, the delegate refused the applicant’s application for a subclass 500 student visa on the basis that the applicant was not a genuine temporary entrant. The delegate stated that the applicant first arrived in Australia in 2010 and has now been residing in Australia since that date, has only returned back to his home country of Sri Lanka on three occasions since that date and was proposing to study a lower-level course which the delegate stated was an indication that the applicant was not a genuine temporary entrant. In particular, the delegate stated that the applicant has acknowledged that he has not progressed academically since 2012 and that the applicant has demonstrated a lack of academic progress which indicates that his primary motivation is to secure ongoing residence in Australia.
The Tribunal has considered all the evidence provided by the applicant prior to the hearing and evidence taken at hearing.
The applicant has provided evidence that he is enrolled in a Graduate Diploma of Management (Learning) which began on 28 October 2019 and is due to complete on 20 June 2021.
The Tribunal has considered the applicant’s response to a request for student visa information under s.359(2) of the Act. In his response the applicant provided evidence that he studied in his home country from 1998 until 2010 where he completed year 12. He stated that he first arrived in Australia in 2010 and since that time has travelled home to his home country on a few occasions, twice in 2012 for 40 days in total for his sister’s wedding and to get married, and once in 2016 and 2018 to visit his parents. He provided evidence that he has either been on student visas or associated bridging visas since 2012. He made his current application on 30 August 2019. In regard to his study here he stated that he completed a university foundation course in 2010, a Certificate III in Engineering in 2013 which is his only completed course here in Australia , that he had an enrolment in a Certificate IV in Engineering which he did not complete 2014, and an enrolment in a Bachelor of Civil Engineering that he did not continue in 2014.
In regard to his current enrolment he stated that there were no similar courses available in his home country because “the standards in the latest technology takes the learning experience to a whole another level”.
In regard to his work experience here the applicant stated that he has been working since 2014 in a fast food outlet and is now working in a supermarket as a bakery assistant earning approximately AU$24,000 per annum. He also stated that he now works as a volunteer at the RSPCA. He stated that his living expenses in Australia are AU$19,020 per annum.
He stated that he has his spouse here in Australia with him and that his sister, who is a citizen, also resides in Australia. He stated that his parents are back in his home country and he talks to his parents three times a week.
In terms of his future employment plans the applicant stated that “in my home country there is a great demand for people with strong management skills who can lead a team. I have opportunities to work as a manager in my father’s old workplace. I have to have a leadership qualification in order to work there”.
It is noted by the Tribunal that in material provided to it immediately prior to the hearing the applicant stated that “my plan is to open up my business in Sri Lanka as a watchsmith and locksmith. This leadership management course greatly benefits me with my workplace”. He also stated that he has spoken to several parties back in his home country about work opportunities as an assistant manager in manufacturing industry. In this material he also stated that there were courses of a similar nature back in his home country but that his current enrolment is unmatched in his home country.
The applicant stated that he did not have any issues regarding military service commitments or political and civil unrest issues that would stop him going back to his home country.
At hearing the Tribunal had a discussion with the applicant about his academic record here noting that he has only successfully completed two courses since 2010 including a short course University foundation course and a certificate level course in electronics which he completed in 2012.
The applicant stated that he had been young and foolish and did not know what he was doing but now wishes to study for and complete his diploma level course in management so that he could go home to his home country having achieved some success in his study and that he only had a few months to go to complete it. The Tribunal had a detailed discussion with the applicant noting that he has not been successful in his study here for over eight years and now wishes to maintain his residence here in Australia to study a low-level course in leadership and management.
The applicant stated that he acknowledged that he has not been a successful student here but wants to go back with a qualification noting that his father who is not well is not aware of his study history here and that this is of concern to the applicant because his father has paid significant sums of money for his stay and study here. The applicant reiterated that he didn’t know what he was doing here for a significant period of time but now wishes to complete this diploma study. He stated that there were similar courses available back in his home country of Sri Lanka but they were not as good as these ones here in Australia and that he wanted to learn how to lead a business.
The Tribunal has considered this evidence carefully and is concerned that the applicant has now been here in Australia purporting to be a student for 10 years and has not had a successful study outcome for the last eight years. It is noted by the Tribunal that the applicant has had various enrolments but none of these enrolments have been pursued actively since that time and have all ended up being cancelled.
The Tribunal also had a discussion with the applicant about his proposed future noting that the applicant has given, over time, several different versions of what he wished to achieve by his study and what he wishes to do with his professional life once he goes back to his home country. He has stated that he wishes to be a locksmith, he has stated that he wishes to work in manufacturing industry, he has also previously stated that he could work as a leader in his father’s business. The Tribunal had a discussion with the applicant about this and is concerned that the applicant could not provide any coherent or credible evidence as to whether he had any real plan for any future back in his home country. The Tribunal finds that this lends weight to the contention that the applicant is seeking to maintain residence in Australia by utilising the student visa program.
In regard to the applicant’s study here, the Tribunal notes that the applicant has acknowledged that he could study such low level courses back in his home country and does not find the applicant’s evidence that he hasn’t gone home because this particular current enrolment is a useful one here in Australia as credible evidence. The Tribunal finds that the applicant has not provided any reasonable reasons for not undertaking such study in his home country or region as similar courses would be available there. The Tribunal finds this lends considerable weight to the contention that the applicant is simply using the student visa program to circumvent the migration program and maintain residence in Australia. In regard to the relevance of the course to the applicant’s past or proposed future employment either in his home country or a third country the Tribunal finds that the applicant has not given any credible evidence that his current enrolment was relevant to his future professional or work life and that no credible evidence was provided that this course will assist the applicant to obtain employment or improve employment prospects in his home country or assist him in achieving a remuneration outcome using the qualifications to be gained from this proposed study. The Tribunal finds that this also lends weight to the contention that the applicant is using the student visa program to circumvent the migration program and maintain residence in Australia.
In regard to the economic circumstances of the applicant the Tribunal had a discussion with him about his work here and earnings and those of his wife who also lives with him here in Australia and also works. The Tribunal notes that the applicant gave evidence that he and his wife jointly earn approximately AU$40,000 per annum. The Tribunal has considered this carefully and finds that the economic circumstances of the applicant would present as a significant incentive for the applicant not to return to his home country. Further, the Tribunal finds that the circumstances also included consideration of the applicant circumstances relative to his home country and to Australia where it is not expected that he could earn an equivalent income. The Tribunal finds that this lends weight to the contention that the applicant is using the student visa program to circumvent the migration program.
In regard to the applicant’s personal ties to Australia it is noted by the Tribunal that the applicant is here in Australia living in a family situation with his wife. It is also noted by Tribunal that his sister is also here and is a citizen. The Tribunal after careful consideration of this matter finds that the extent of the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia and that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and maintain residence in Australia.
In regard to the applicant’s personal ties to his home country it is noted by the Tribunal that the applicant has been back from time to time to his home country and also speaks and communicate regularly with the rest of his family and is maintaining his family relationships adequately from here in Australia. The Tribunal finds that this also lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and is not a genuine temporary entrant.
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.
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.
In regard to the secondary applicant the Tribunal finds that as the primary applicant does not meet the requirements for the visa application that the secondary applicant also does not meet the requirements for the visa application.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Stephen Witts
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.

[2020] AATA 5792

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction