Carneiro (Migration)

[2021] AATA 2699

Carneiro (Migration) [2021] AATA 2699 (10 June 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Loona Carneiro

CASE NUMBER:  1934027

HOME AFFAIRS REFERENCE(S):         BCC2019/4960759

MEMBER:  D Triaca

DATE:  10 June 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 10 June 2021 at 1:02pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met – applicant hasn’t been studying – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 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 18 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

1. The applicant applied for the visa on 3 October 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.

1. 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).

1. The applicant appeared before the Tribunal on 9 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

1. The applicant was assisted in relation to the review by their registered migration agent.

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

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. 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)

1. 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, 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.

1. 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.

1. 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.’

1. Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in accordance 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. The issues in this case arose in the following circumstances, the applicant is a 21 year old citizen of France. She first arrived in Australia on 10 October 2019. On 18 November 2019 a delegate of the Department refused her application (delegate’s decision). She subsequently applied to the tribunal for a review of the delegates decision and he provided the tribunal with a copy of that decision

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

1. 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)Written Submissions prepared by the applicant’s representative dated 2 June 2021 and supporting documents filed therein including news reports, English Proficiency Reports, Confirmation of Enrolment, Evidence of Health cover, Copies of relevant AAT decisions referred to in those submissions.

   (g)Written response to the tribunal’s request for further information pursuant to s.359(2) of the Act (359 Response).

1. The applicant is currently enrolled in a General English course at Lonsdale Institute. She commenced studying in February 2021 and is due to complete the course in May 2022. By this application she is seeking to remain here to enable her to complete the course.

1. The applicant says that she plans to return home at the completion of her studies and undertake further study in France. She says she hopes to study International Business.

1. The tribunal has serious reservations about this application. For the following reasons, it does not consider her to be a genuine applicant.

1. The applicant has resided in Australia since 2018. She arrived here on a working holiday visa that ceased in October 2019. She has been on a bridging visa since that time. She applied for a student visa in October 2019. At that time she was enrolled in and proposing to study a Certificate III and IV in Business at Masters in Training and was seeking to remain here to enable her to complete these courses in December

2021. The application was made to the Department and it was supported by a Genuine Temporary Entrant Statement filed on her behalf.

1. In her evidence to the tribunal, she says that she was not aware of the circumstances of her enrolment and that she had no wish to enrol in business courses. This was arranged by her former agent. She says that she did not know that she was enrolled in these courses. She did not prepare the GTE Statement filed in support of her application. She had expressed a wish to her former agent to study English language courses. She attributes her lack of understanding of these matters to her poor knowledge of the English language.

1. When asked how she spent her time between the delegate’s decision in November 2019 and commencing her current course in February 2021, she simply stated ‘not doing much.’ When asked why she had taken so long to enrol in an alternative course, she said that she had been advised by her former agent that she should wait until the outcome of this review.

1. I do not accept her evidence. Whilst it may be that there has been some level of confusion on account of the applicant’s lack of English, the evidence is essentially that the applicant has spent a considerable period of time in Australia without undertaking any form of study and working only intermittently. The tribunal considers that a genuine student would have made appropriate enquiries and sought further advice as to her ability to advance her career in work or study whilst waiting for her appeal.

1. Further, I do not accept that the applicant was enrolled in a course without her knowledge. The process of filing a student visa application and seeking a review of the delegate’s decision is a multi-step process. It is difficult to see how that entire process could occur without the applicant’s involvement at some point. The delegate’s decision was sent directly to the applicant in November 2019. It makes express reference to the applicant’s enrolment in business courses. I find that the applicant had every opportunity to seek clarification of her situation if she was confused, including seeking a translation of the document that was sent to her by the Australian Government on Australian Government Department of Home Affairs

letterhead. If the applicant chose not to investigate the situation, then I consider it is a case of wilful blindness rather than genuine lack of understanding.

1. I reject the submissions that the applicant has somehow been disadvantaged by the advice given to her by her education agent. It is submitted that the education agent provided her with advice that ought to have been provided by a Registered Migration Agent and that the ‘Department of Home affairs allows unregistered education agents to continue to operate in the migration space.’ The applicant’s representative provided a report in support of this submission. This may be an accurate assessment of a problem in the Australian migration system. However, taken at its highest, I do not consider it acceptable for the applicant to accept such advice from her education agent uncritically, if that advice was to the effect that she should neither work or study for an extended period.

1. I reject the submission to the effect that the applicant should be able to study in Australia on account of the COVID-19 pandemic. Whilst there may be some uncertainty in relation to when the applicant may return to France, I do not consider that his uncertainty turns an otherwise unmeritorious application into a genuine one.

1. I do accept that there is some utility in the applicant learning English. Learning a second language is likely to be advantageous in International Business that the applicant wishes to study upon her return home. This is a matter in her favour. However, in the context of the applicant failing to take any steps to study English before February 2021, I consider that this is only a minor matter in her favour. The reality is that the applicant could by now have completed the 15-month English course she has enrolled in had she taken a proactive approach to her studies.

1. I reject the applicant’s evidence that she is unable to undertake equivalent study in France. I do not consider she advanced reasonable reasons for not doing so. She states that the courses are of ‘poor quality’ and ‘too expensive’. I do not accept that there is not a suitable English language course available to the applicant in her home country.

1. Further, whilst I accept that there is some advantage to the learning English in Australia, I do not accept that there is a significant advantage in remaining in Australia for the purpose of learning English. I consider that by now, the applicant

has resided here since October 2018 and has had the opportunity to immerse herself in an English-speaking country for a reasonable period.

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

1. The applicant states, and the Tribunal accepts that she has no concerns in relation to political or civil unrest in her home country.

1. The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.

1. The applicant’s family consisting of her parents and three siblings are resident in France. She has not returned home since September 2018. She says that she is close to her family and speaks to them often via telephone and social media. She says that she is involved in horse riding in her home country, but I do not consider this is likely to impact on her return home as she has not been involved in this community for some years. In circumstances in which she has resided in Australia since 2018 and is seeking to extend her time here, I do not consider that her family is operating as a significant incentive to return home.

1. There is no specific evidence to suggest that the applicant has a family or personal tie to Australia that operates as a strong incentive for her to remain here. She says she has a distant cousin in Australia, but I do not consider this tie is likely to constitute a strong tie to Australia.

1. The applicant reports that she has worked intermittently in Australia. Recently she has found casual work in Melbourne. Previously she has worked on a farm and as a fruit picker. She says she has financial support from her family. She owns a horse in France that is quite valuable. In the circumstances I do not consider the evidence suggests that the applicant has a significant economic incentive to return home or remain in Australia. Her economic circumstances are neutral to the application.

1. The applicant has travelled from France to Australia. She reports holidaying in Thailand and Indonesia in 2019. She appears to have complied with the

requirements of her visas since arriving here. In the circumstances I make no adverse findings in relation to the applicant’s travel or immigration history.

1. There do not appear to be any other relevant matters.

1. I have considered all the evidence before the tribunal. I do not consider the applicant is a genuine applicant. The applicant has had reasonable opportunity to pursue the study of English in Australia. She elected not to do so until February 2021 and she was unable to provide reasonable reasons for not undertaking this study in her home country. Accordingly, the application is refused.

1. 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).

1. 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.

1. 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

1. 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

1. 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.