Das (Migration)

Das (Migration) [2019] AATA 5865 (19 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Pratiksha Das
CASE NUMBER:  1816434
HOME AFFAIRS REFERENCE(S):          BCC2018/1238072
MEMBER:Roger Maguire
DATE:19 October 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 October 2019 at 11:44am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant – enrolment in a registered course – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
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 16 May 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 March 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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) because the delegate found that the applicant did not intend to stay temporarily in Australia.
On 23 August 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about the course(s) of study being undertaken, and entry and stay in Australia as a student in writing.
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 by the date specified the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The review applicant has not provided information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear:[1]
[1] Hasran v MIAC [2010] FCAFC 40
The Tribunal made a decision based on the material then before it, and affirmed the decision under review. The Tribunal was subsequently contacted by the applicant’s Migration Agent, and agreed to reopen the matter as its prior decision contained jurisdictional error.
Further material was lodge on behalf of the applicant on 26 September 2019, and the Tribunal has had regard to this material in its consideration of this review. This material included:
(a) A GTE statement dated 13 March 2018,
(b) A Form M 17 dated 3 September 2019;
(c) A statement by Ranjan Kumar Das dated 29 August 2019;
(d) Cancelled Confirmation of Enrolment 981B3243 created 2 March 2018 for an enrolment in a Diploma of Leadership and Management [091302K] to begin 23 April 2018 and end 7 April 2019;
(e) Cancelled Confirmation of Enrolment 981B4039 created 2 March 2018 for enrolment in an Advanced Diploma of Business [087499D] to start on 22 April 2019 and end on 5 April 2020;
(f) A current Confirmation of Enrolment AA33BF47 created 30 May 2019 for enrolment in a Diploma of Leadership and Management to commence on 8 July 2019 and end on 5 July 2020.
(g) A current Confirmation of Enrolment AA22CB81 created 30 May 2019 for an Advanced Diploma of Leadership and Management to commence on 27 July 2020, and end on 23 January 2022.
The Tribunal also had before it a copy of the Decision Record for the decision under review which was provided to it by the applicant.
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 is a genuine applicant for entry and stay as a student.
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.
The Form M 17 provided by the applicant was not provided in its entirety, and so much of it as was provided, was not fully completed. The Tribunal received pages 1, 3, 7, 9, 11, and 13, and much of these were left blank.
The Decision Record dated 16 May 2018, and provided by the applicant, noted that the applicant first arrived in Australia on 12 February 2015. It also noted that as at the date of the Decision Record, the applicant’s PRISMS records disclosed her history of enrolments as follows:
(a) Diploma of Arts   Cancelled;
(b) Diploma of Arts   Cancelled;
(c)   Bachelor of Arts  Cancelled;
(d) Bachelor of Business (Accounting)   Cancelled;
(e) Bachelor of Business (Accounting)   Cancelled;
(f)    Certificate III in EAL (Access)  Finished;
(g) Diploma of Leadership and Management  Studying;
(h) Advanced Diploma of Business:     Approved.
At the time of the current visa application, the applicant held enrolments pursuant to Confirmations of Enrolment 981B3243 and 981B4039, which were due to end on 5 April 2020, however each of those confirmations of enrolment has been cancelled, and the applicant has again enrolled in a Diploma of Leadership and Management, but has abandoned her aspiration to study an Advanced Diploma of Business.
Whilst the applicant has re-enrolled in a Diploma of Leadership and Management (with a different provider) the course duration appears to be the same as for her cancelled enrolment in the same course. This suggests that the applicant has been allowed no credit for her previous study, which suggests that she made little progress in her previous enrolment, and this provides little basis for confidence that the applicant will successfully complete her current enrolment. This weighs against the applicant.
Instead of pursuing an Advanced Diploma in Business, the applicant has instead chosen to enrol in an Advanced Diploma of Leadership and Management, without any explanation as to why she has abandoned her plan to study an Advanced Diploma in Business, or why she has now chosen to pursue an Advanced Diploma of Leadership and Management.
The applicant’s current enrolments are now due to complete on 23 February 2022, instead of April 2020. This would bring the duration of the applicant’s stay in Australia to in excess of seven years, a period which this Tribunal finds to be in excess of what might be considered “temporary”, and the Tribunal finds that the duration of the applicant’s proposed stay in Australia is inconsistent with the notion of being a “temporary” entrant. This weighs against the applicant.
As at the date of this decision, it is clear that the enrolments in subparagraphs (g) and (h) of paragraph 16 of these reasons were both cancelled for reasons which are not presently clear to the Tribunal. The Tribunal notes that the applicant has offered no explanation for these cancellations. Putting this into perspective, it is clear that in the four years and eight months that the applicant has been in Australia, the applicant has only completed a relatively short course in her Certificate III in EAL (Access). The Tribunal regards this as a very poor academic outcome and it does not justify the time and expense of the applicant’s presence in Australia. This weighs against the applicant.
Applicant’s circumstances in home country.
The applicant left blank her response to item 16 of the form M 17 which requested details of how and why the applicant chose her education provider for her course. The applicant has chosen to provide the Tribunal with no information as to why she chose her current provider, and no convincing explanation as to why she has chosen her current enrolments. This weighs against the applicant.
The applicant left blank her response to item 17 of the form M 17, which invited her to comment on the availability of similar courses in her home country or region, and her reasons for not undertaking her study in her home country or region. The applicant has chosen to provide the Tribunal with no information regarding the availability of similar or comparable studies in her home country, or why they are not sufficient for her career purposes. Neither has the applicant provided reasons why it is necessary for and for her to undertake her current study in Australia. The Tribunal is therefore not satisfied that the applicant has reasonable reasons for undertaking her current and proposed study in Australia. This weighs against the applicant.
The applicant arrived in Australia on 12 February 2015 and returned to her home country for a period of three months in November 2015, and for a period of two months in November 2016. It is now approaching three years since the applicant has returned to her home country. The Tribunal accepts that the applicant has family in her home country, however the applicant has left blank item 22 of the form M 17 in which she was invited to give details of her contact with her family. Likewise the applicant has left blank items 23 and 24 in the form M 17 in which she was invited to give details of her community ties to her home country, and concerns about military service commitments or political or civil unrest.
The applicant’s father has provided a statement in which he describes assets of the applicant in India.
The applicant’s father is proposing to open and ecotourism resort in India, and refers to the fact that his daughter was “sent to Australia to pursue higher studies particularly in “Leadership and Management” and extra Certificate Course Wildlife Management.” The applicant’s father has also stated “I have asked my daughter Pratiksha to join me after her study on Leadership and Management, extra Certificate Course Wildlife Management and allied subjects in Australia.” There is nothing before the Tribunal to indicate the applicant has at any time been enrolled in - or has any future plans to enrol in - any course related to wildlife management.
The Tribunal considers that the applicant’s prospect of returning to her home country effectively academically empty-handed, lessens her incentive to return to her home country.
Applicant’s potential circumstances in Australia.
The applicant has now lived in Australia for some four years and eight months during which time she has made negligible academic progress, and she is now seeking to extend her stay until January 2022, in part to complete a course which she has previously failed to complete. The Tribunal has no evidence before it so as to lead it to believe that the applicant’s prospects of successful completion at her second attempt are any greater than they were at her first attempt.
The applicant has stated that her stay in Australia is being funded by her father, and the applicant has provided the Tribunal with no information as to her employment and earnings history since coming to Australia. The applicant’s academically unproductive stay in Australia does not suggest that her continued presence in Australia is genuinely motivated by a desire to study, and gives the Tribunal little confidence that the applicant will successfully complete either of her current enrolments. In these circumstances, the Tribunal is unable to find that the expense of the applicant’s continued presence in Australia is justified. This weighs against the applicant.
The applicant’s almost total lack of academic achievement in Australia is not consistent with entry and stay as a student, and her current desire to extend the period of his stay in Australia suggests that her presence in Australia is motivated by factors other than study, and this weighs against the applicant.
Value of course to the applicant’s future.
The applicant’s career plans are vague, and confused having regard to her father’s comments regarding wildlife management. The applicant has provided the Tribunal with no information as to what she might hope to earn were she to successfully complete her current enrolments, were she to actually successfully complete them. The applicant’s father seems to place some weight on a wildlife management course which has never been attempted by the applicant.
Having regard for the applicant’s poor academic history, the Tribunal sees little likelihood of the applicant successfully completing her current enrolments, and therefore assesses them as being of no value to her future employment prospects. This weighs against the applicant.
Applicant’s immigration history.
The applicant’s poor record of academic achievement in Australia suggests to the Tribunal that her presence in Australia has been motivated by factors other than study, and this weighs against the applicant.
Parental intentions for a minor applicant.
There is no minor applicant involved in this review.
Any other relevant information.
There is no other relevant information in this review.
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).
Conclusion on cl.500.212
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Roger Maguire
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.

[2019] AATA 5865

19 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction