Devanesan (Migration)

[2018] AATA 2467

Devanesan (Migration) [2018] AATA 2467 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jerry Billington Devanesan

CASE NUMBER:  1705497

HOME AFFAIRS REFERENCE(S):         BCC2017/86132

MEMBER:Warren Stooke AM

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2018 at 2:35pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – No attempts made by applicant to attain enrolment – Where the applicant has intentions other than study – Care of relatives – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000, Pt 2 Div 3
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

CASES
Mehmeti v Minister for Immigration & Anor (2016) FCCA 1057
Saini v MIBP [2016] FCA 858
Saini v MIBP [2015] FCCA 2379

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 January 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant applied to transition from two Tourist FA-600 visas to a subclass 500 Student visa having arrived in Australia as support for his infirmed mother and stated that he had a work commitment to return to in India. The delegate had serious doubts regarding the genuine temporary intentions.

4. The applicant appeared before the Tribunal on 23 May 2018 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 temporary.

   Enrolment (cl.500.211)

8. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

9. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

10. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

11. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 2 March 2017 and that he understood the content of the decision.

12. The applicant provided the Tribunal with an explanation, as to his understanding for the refusal of the visa application by the delegate and acknowledged that the reason was that the delegate did not accept that the applicant was a genuine student.

13. The applicant does not claim to meet the primary criteria for any subclass of the student visa and seeks to meet the secondary criteria as a member of the family unit of a person who holds a student visa.

14. The applicant confirmed to the Tribunal that he does not currently have a Certificate of Enrolment and that the last time he undertook any study was in December 2017, when he completed an ELICOS course at the Turner English School. The applicant gave evidence that he thought his hearing would be held before the end of December 2017.

15. The applicant advised the Tribunal that after finishing his English course he visited his sister in Perth and decided that he would wait to find out the status of his visa before enrolling in a further English course, as a precursor to attending a Polytechnic school specialising in music production.

16. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

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

17. 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?

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

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

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

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

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

19. 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.

20. The applicant is a 33 year from India, who arrived in Australia on a Tourist FA-600 visa on 8 July 2016, with the stated purpose of travel being undertaken to accompany his infirmed mother. On 30 September 2016 the applicant was granted a second Tourist visa, which was due to expire on 8 January 2017.  The applicant has not returned to India since arriving in Australia.

21. The applicant, on the evidence provided, considered undertaking an English course to assist in the improvement of his EILTS score and applied for a TU 500 visa on 7 January 2017 to undertake a course that was intended to finish on 10 December 2017. This course was completed on 10 December 2017 and the applicant has not participated in any further study since this time.

22. The applicant provided evidence that he left school in 2003. He is one of seven children and all of his siblings have substantive educational backgrounds, including Master degrees and other courses. The applicant’s father is a Christian Pastor and two of his brothers work in the church. The applicant stated that he had to leave school to work and that he had a passion to study but could not do it.

23. The applicant, whilst on the Tourist visa, decided that he had musical talent but not the “certificate” to compliment that talent.  As such, he stated that he surveyed available courses online before deciding to enrol with Turner to improve his EILTS score to gain entrance to a Production course. His objective was to advance his career through a suitable production course.

24. The Tribunal asked the applicant when he was proposing to return to India and he responded that he did not know.

25. The applicant lives in Hampton Park with a friend and does not pay rent. It is noted that the applicant does not have work rights and is supporting himself from savings and finances from his sister in Perth.

26. The Tribunal enquired of the applicant as to when he intended to return to India. The applicant responded that he did not know, as he would be seeking further opportunities and start working on that. The applicant stated that there was no reason why he could not return to India. He also confirmed, in response to a question from the Tribunal regarding his motivation to stay in Australia permanently, with the comment – “not at all”.

27. The Tribunal is not satisfied that the behaviours exhibited by the applicant since arriving in Australia on 8 July 2016 on a Tourist visa and the impromptu decision to undertake studies after the elapse of two Tourist visas, is consistent with the behaviours expected of a genuine temporary entrant. The applicant had no specific plan upon return to India and from the evidence was undecided about when he would return to India. The applicant had also made no attempt to secure enrolment in a course of study, despite his migration agent informing him of the need to have a certificate of enrolment to satisfy the regulations.

28. The Tribunal is of the view that the applicant is using the Student visa education program to circumvent permanent entry programs available for that purpose. Further, the Tribunal is satisfied that there are no advised reasons, from the evidence, that would impact upon a decision that would require the applicant to return to India, in the context of Direction 69 , including military service.

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily for the purposes of study. Accordingly, the applicant does not meet cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

30. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

31. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

32. On the basis of the applicant’s history of applying to transition from two Tourist visas to a Student subclass 500 visa and the fact that the applicant has remained in Australia without income since arriving, suggests that the applicant is a risk of not being able to sustain himself whilst in Australia prior to return to his home country, which was described as - “I don’t know”. Accordingly, the Tribunal is not satisfied that the applicant will comply with the requirements of the legislation, despite having complied with the former Tourist visas and the current Bridging visa, which the Tribunal has considered against the complete circumstances of the applicant.

33. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

34. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

35. The Tribunal is not aware of any other circumstances that the Tribunal should consider having carefully reviewed the submissions of the migration agent. The agent canvassed the options of the applicant in the written submission, which the Tribunal notes includes other forms of visa. The Tribunal notes that the applicant would need to satisfy the criteria pertaining to a Skilled Regional (Provisional) visa (subclass 489) and on the current standing of qualifications held by the applicant, such applications would be determined accordingly in line with the specific criteria, which is not the matter before the Tribunal, as presently constituted.  

36. The Tribunal has considered the applicant’s future aspirations, which is the “dream” he referenced in the hearing. Whilst the Tribunal acknowledges that an applicant can change visa status, it is ultimately a matter for the Tribunal to assess the genuineness. At no time did the applicant express in his visa applications, including a second Tourist FA-600, that he was contemplating study. The Tribunal, acknowledges that the applicant completed an English course on 10 December 2017 and as supported by the evidence his EILTS score has improved particularly in reading. The Tribunal notes that upon completion of the ELICOS course, the applicant, instead of demonstrating his bona fides as a genuine student for the purposes of study, elected to spend almost six months unemployed (given 8101 visa restriction), visiting family in Perth and not pursuing his dream of study (permission to study was available). These actions (included in submissions) were contrary to the advice provided by the migration agent, who recommended that he continue his studies. This advice was repudiated by the applicant, which reinforces the view of the Tribunal that the applicant is not a genuine temporary student for the purposes of study.

37. The representative stated in the submission:

    “The outcome of the case of Mehmeti v Minister for Immigration & Anor (2016) FCCA 1057 decided that if the applicant enrolled in a course and engaged in their proposed course of study while they were awaiting a hearing against the refusal of their student visa application before the Tribunal then the evidence would undoubtedly help persuade the Tribunal that the person does indeed intend to study in Australia, and that they therefore meet the criterion of being a genuine applicant for entry and temporary stay in Australia as a student.”

38. The expression ‘genuinely intends to stay in Australia temporarily’ has been subject to judicial consideration in the context of the equivalent pre-1 July 2016 student visa criteria. It requires that the applicant must unqualifiedly intend his or her stay to be temporary.[1]  In Saini v MIBP Judge Cameron held that an intention to remain in Australia if qualified to do so at the end of the student visa, would amount to the lack of an intention to stay temporarily, because the intention to stay temporarily would not be unqualified.[2] In upholding his Honour’s judgment, Justice Logan held that what is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily. The Tribunal notes that the actions of the applicant are not contemplated in the terms of the authority argued by the representative and conversely reinforces the Tribunal’s view that the lack of participation in study is a consideration with which the Tribunal must give weight in the final determination.

    [1] Saini v MIBP [2015] FCCA 2379 (Judge Cameron, 3 September 2015) at [23], upheld on appeal in Saini v MIBP [2016] FCA 858 (Justice Logan, 29 July 2016).

    [2] Saini v MIBP [2015] FCCA 2379 (Judge Cameron, 3 September 2015) at [23].

39. The applicant stated at the conclusion of the hearing -  “If you give me an opportunity to stay I will be attentive student – help me fulfil my dream.”

    Conclusion on cl.500.212

40. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

41. Given the applicant’s personal circumstances, immigration history, the current non-enrollment in any course of study, the lack of stated future goals and the comparatively greater economic and employment opportunities in Australia, the Tribunal finds that the applicant is using the Student visa program to circumvent the intentions of the migration program.

42. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily for the purposes of study.

43. 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.

44. 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

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

    Warren Stooke AM
    Member