Beresnev (Migration)

[2021] AATA 898

Beresnev (Migration) [2021] AATA 898 (11 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aleksandr Beresnev

CASE NUMBER:  1925891

HOME AFFAIRS REFERENCE(S):         BCC2019/3776116

MEMBER:Dominic Triaca

DATE:11 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2021 at 2:09pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – academic record in Australia – reasonable progress – value of the further study – proposed further study inconsistent with current level of education – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16

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 2 September 2019 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 30 July 2019. 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 21 January 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. 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.

9. 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.

10. This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’

11. Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]

    [1] See Singh [2019] (Migration) AATA 2993 at [13]

    [2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292

12. The issues in this case arose in the following circumstances, the applicant is a 37 year old citizen of Russia. He first arrived in Australia in May 2019 on a tourist visa. On 30 July 2019 he applied for a student visa. On 2 September 2019 a delegate of the Department refused his application (delegate’s decision). He subsequently applied to the tribunal for a review of the delegate’s decision and provided the tribunal with a copy of that decision.

13. The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:

    (a)The delegate’s decision record;

    (b)The applicant’s original written visa application;

    (c)The oral evidence and arguments of the applicant presented at the hearing;

    (d)All written material filed by or on behalf of the applicant in relation to this case;

    (e)Other relevant documents on the Tribunal and Department files;

    (f)Applicant’s written response to the tribunal’s invitation to provide further information, provided 15 June 2020 (359 Response).

14. Since arriving in Australia that applicant has studied a series of English courses. In October 2020 he enrolled in a Certificate IV in Teaching English to Speakers of Other Languages at Wentworth Institute. He is due to complete this course on 24 October 2021. He is also enrolled in a Diploma of Teaching English to Speakers of Other Languages, due to commence in November 2021 and be completed in October 2022. He states that at the completion of his studies he intends to return home to Russia and become an English teacher.

15. The applicant’s record in Australia is reasonable He provided written statements from his course providers that demonstrate he has applied himself to his studies and made reasonable progress. For example, the statement of Lloyds International College dated 9 June 2020 confirms ‘his level was Advanced and his attendance was 99%’ and I accept he has applied himself to his studies in Australia.

16. The applicant graduated with a jurisprudence Bachelor’s degree in 2007 from the Russian Foreign Trade Academy. He holds a certificate as an English language translator. Between 2008 and 2019 he worked in Russia at he branch of a transnational financial company Societe Generale in the Russian division of Rosbank in customer service and says he was a manger. He subsequently took a role as a corporate finance officer before he moved to a higher position as manager of clients at Garant Holding LLC in 2016.

17. The applicant says he realised that upon arriving in Australia he realised his English language skills were inadequate and did not allow him to speak English fluently and he sought to enrol in English courses. He did so and has successfully completed those courses. He is now studying a course that would enable him to be an English teacher. He provided a translated letter from his Russian employer that states that his salary upon his return home will be increased in accordance with improved IELTS results.

18. The tribunal accepts that improved English language skills are likely to be advantageous to the applicant upon his return to Russia. It accepts that it was reasonable for him to seek to improve those skills by living and studying in an English-speaking country such as Australia. However, the tribunal considers that the applicant has essentially done what he came to do in Australia. He has studied English language courses here since mid-2019 and appears to have applied himself to his studies. He was able to conduct the hearing before the tribunal without the assistance of an interpreter. Inferentially, he has improved his English language skills since arriving here.

19. The tribunal considers that the applicant has not demonstrated why he requires further study of courses designed to equip him with the ability to teach others English language before returning home. He states in his 359 Response that he intends to return to his previous position in the Garant Holding LLC in Russia. He says that English allows working with representatives of foreign companies in Russia without an interpreter. Which increases the efficiency of negotiations and establishing contacts. It is true that these courses, and simply living in Australia, may continue to improve the applicant’s English. However, the tribunal considers the value of the further study is marginal. The tribunal considers that the applicant has had the advantage of living and studying in an English speaking environment for over 18 months and is now in a position to return home to Russia, and utilise his improved English skills. The applicant has not demonstrated why further study in Australia is required.

20. In any event, the tribunal considers that if the applicant requires further improvement of his English language skills and knowledge, suitable further study is likely to be available to him in his home country, either in person or in an online environment. In the absence of any objective evidence, it does not accept that ‘high quality learning of English’ is ‘impossible’ in the applicant’s home region.

21. The applicant’s proposed further study appears to be at a level below his studies in his home country. It is not consistent with his level of education. The tribunal accepts that it was reasonable for the applicant to seek to study in Australia. However, it does not consider the evidence demonstrates that further study is necessary or reasonable. It does not consider that the applicant’s enrolments in Certificate IV and Diploma of TESOL are likely to improve his prospects of employment in his home country or a third country. It follows that the successful completion of the proposed TESOL courses are not likely to increase his remuneration upon his return.

22. There is no evidence in relation to the applicant’s circumstances in his home country relative to others there.

23. The applicant states, and the Tribunal accepts that he has no concerns in relation to political or civil unrest in his home country.

24. The applicant states, and the Tribunal accepts, that he has no concerns in relation to military service commitments in his home country.

25. The applicant’s family is said to be his parents and grandmother residing in Russia. He says that he is regular contact with them via Skype. I accept this. However, I do not consider that in circumstances in which the applicant has not returned to Russia since arriving here and is seeking to further extend his stay, the applicant’s family ties to Russia operate as a significant incentive to return home.

26. There is no specific evidence to suggest the applicant has ties to Australia that are likely to operate as a significant incentive to remain here.

27. The applicant says that he does not work in Australia but works for a Russian company online. He declared that he owns an apartment in his home country. The tribunal does not consider the applicant’s economic circumstances operate as a significant incentive for him to remain in Australia.

28. There do not appear to be any other matters relevant to the application.

29. The tribunal has considered all the evidence before it. It does not consider the applicant to be a genuine applicant. It seems that the applicant’s time in Australia has been productive in that he has accomplished what he initially set out to do and improved his English language skills. He has now had the benefit of an extended period of study and living in an English speaking country and the tribunal does not consider the evidence demonstrates that the applicant requires further study in Australia in order to return home and utilise his English language skills to advance his career. In the circumstances, the delegate’s decision should be affirmed. 

30. 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).

31. 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.

32. 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

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

    D Triaca
    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.