Fernando (Migration)

[2019] AATA 5225

Fernando (Migration) [2019] AATA 5225 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Warnakulasuriya Sumudu Amal Joseph Fernando
Mrs Ruvini Anuradha Appuhamy Christogu Mudalige Dona
Mr Nigel Noah Fernando

CASE NUMBER:  1801372

HOME AFFAIRS REFERENCE(S):           BCC2017/3739469

MEMBER:Roger Maguire

DATE:3 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 03 September 2019 at 2:47pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine temporary entrant – length of time in Australia – reason for studying in Australia – no specific future plans – failure to disclosure employment and earnings in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 5 January 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 October 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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 delegate found that the applicant did not intend to stay temporarily in Australia.

4. On 12 April 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.

5. 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.

6. 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

7. The applicant made a submission to the Tribunal on 1 May 2019, and the Tribunal has considered this submission together with all other material before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)

10. 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?

11. 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.

12. 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.

13. The applicant has not helped his application by failing to provide responses to a number of the various questions posed in the Request for Student Visa Information form which he submitted. Such information as has been provided by the applicant is best described as scant. To the extent that the applicant has provided information, the Tribunal gives it little weight. The failure of the applicant to provide a fulsome response so as to assist the Tribunal in its deliberations weighs against the applicant.

    Applicant’s circumstances and home country.

14. Prior to coming to Australia, the applicant completed year 12 in Sri Lanka. The applicant has not provided information regarding any employment he may have had in Sri Lanka prior to coming to Australia.

15. In a statement provided to the Tribunal on 1 May 2019 the applicant stated that since coming to Australia on 26 December 2007 he had returned to his home country, but gave no details of any such travel. Information provided by the applicant to the Tribunal at the time of the decision under review, 5 January 2018, the applicant had only departed from Australia on five occasions for short periods.

16. The applicant is currently enrolled to study a Diploma of Hospitality Management which is due to complete in November 2019. The applicant has provided no information as to how he came to select this particular course, or education provider.

17. The applicant has provided no evidence to suggest that he has researched the availability of comparable courses in his home country, and has not attempted any explanation as to why it is necessary for him to undertake his current course of study in Australia. The Tribunal finds that the applicant has failed to demonstrate reasonable reasons for the necessity for him to undertake his current study in Australia.

18. The applicant has not provided any information regarding any family ties he might have to his home country.

19. The Tribunal is not satisfied that the applicant has demonstrated any significant incentive to return to his home country.

    Applicant’s potential circumstances in Australia.

20. The applicant is currently in his 12^th year of residence in Australia. The duration of this day is not consistent with the notion that the applicant is a “temporary entrant”. The very duration of the applicant’s stay suggests that the applicant is using the student visa program as a means of maintaining residence in Australia, and the Tribunal so finds. This weighs heavily against the applicant.

21. The applicant is accompanied in Australia by his wife and son both of whom are dependent applicants in this application. The Tribunal finds that the presence of the applicant’s immediate family in Australia with him lessons his incentive to return to his home country, particularly in the circumstances where he has disclosed no other family in his home country. The Tribunal gives weight to this finding.

22. The applicant has not provided any details of any assets of any description in his name in his home country, other than stating that he and his wife have savings in Sri Lanka and that his wife also has a house in Sri Lanka. That is the extent of the information the applicant has seen fit to provide, and the Tribunal gives this little weight.

23. The applicant has not responded to a request to provide details of his employment plans at the completion of the course now studied. The Tribunal therefore finds that the applicant has no specific plans for his future upon completion of his proposed course of study.

24. The applicant has not responded to a question as to his concerns about military service commitments or political or civil unrest in his home country. The Tribunal therefore finds that the applicant has no such concerns.

25. The applicant has stated that his wife works as a hairdresser in Australia, but has not disclosed her earnings.

26. In his correspondence delivered on 1 May 2019 the applicant has not disclosed any employment at all during this period and has not disclosed any earnings during this period. In that same correspondence, the applicant has not disclosed any living expenses at all in Australia.

27. The Tribunal is not satisfied that the applicant has been cooperative and truthful with Australian government authorities in relation to stay in Australia, and overall this weighs heavily against the applicant.

    Value of course to the applicant’s future.

28. The only course disclosed by the applicant in his correspondence of 1 May 2019 is a diploma of hospitality which the applicant commenced in November 2017 shortly before the making of the decision under review.

29. The applicant has not responded to an invitation to give details of the remuneration he expects to earn in his home country or a third country using the qualifications he is currently studying.

30. The Tribunal is therefore unable to find that the applicant’s current course of study adds value to his future employment prospects.

    Applicant’s immigration history.

31. The manner in which the applicant has responded to the invitation issued to him on 12 April 2019 to provide information regarding his courses of study and his status as a genuine temporary entrant is indicative of a disrespect of, and lack of cooperation with Australian government authorities.

32. The Tribunal takes a dim view of the applicant’s failure to provide any information at all regarding his earnings in Australia over an 11 year period. The Tribunal is concerned that this may be in consequence of a desire to conceal information from the Australian government, although the Tribunal makes no finding in that regard.

33. The very duration of the applicant’s intended stay in Australia is suggestive of the fact that he has been abusing the student visa program to maintain residence in Australia, and having regard to all of the circumstances of this case, the Tribunal so finds. This weighs heavily against the applicant.

    Parental intentions for minor applicant.

34. Whilst there is a minor applicant in this application, the applicant has not expressed any intentions in relation to that minor applicant, and the Tribunal therefore makes no finding in respect of this criterion.

    Any other relevant information.

35. There is no other relevant information before the Tribunal.

36. 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

37. 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.

    Dependent Applicant Mrs Ruvini Anuradha Appuhamy Christogu Mudalige Dona

38. In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    500.311

    The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

    (a)  the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

    (i)the primary person’s application under sub regulation 2.07 AF (3); or

    (ii)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or

    (b)  the applicant became a member of the family unit of the primary person:

    (i)after the grant of the student visa to the primary person; and

    (ii)before the application was made.

39. As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.

40. As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.

    Dependent Applicant Mr Nigel Noah Fernando

41. In order to grant the above named applicant a Student visa, the Tribunal must be satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that:

    500.311

    The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

    (c)  the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

    (iii)the primary person’s application under sub regulation 2.07 AF (3); or

    (iv)information provided in relation to the primary person’s application under sub regulation 2.07 AF (4); or

    (d)  the applicant became a member of the family unit of the primary person:

    (iii)after the grant of the student visa to the primary person; and

    (iv)before the application was made.

42. As the primary person failed to satisfy the primary requirements for the grant of this student visa, the above-named applicant fails to satisfy clause 500.311.

43. As clause 500.311 is not met by the primary applicant, the criteria for the grant of a student visa are not met by the above-named applicant.

    DECISION

44. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    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.