Fishman (Migration)

[2020] AATA 6134

Fishman (Migration) [2020] AATA 6134 (14 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Fishman

CASE NUMBER:  1921366

HOME AFFAIRS REFERENCE(S):          BCC2019/2380814

MEMBER:Stephen Witts

DATE:14 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 September 2020 at 10:39am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time onshore in Australia – already attained the necessary qualifications – value of proposed courses – inconsistent with current level of education – decision under review affirmed

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

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 15 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal by telephone on 10 September 2020 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 genuinely intends to stay in Australia temporarily.

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

8. 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?

9. 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.

10. 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.

11. At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.

12. According to the delegate’s decision record dated 15 July 2019, provided to the Tribunal by the applicant, the applicant was granted his initial Student (Class TU subclass 572) visa valid until 30 August 2013 on 16 August 2011. The applicant arrived in Australia on 26 August 2011. According to the delegate since the applicant’s arrival onshore he is held either a student visa or associated bridging visa except for a period from April 2016 to October 2017 when he held a temporary skilled visa. According to the delegate at the time of application the applicant held a subclass 500 student visa valid until 5 May 2019. According to the delegate it rejected this application on the basis that the applicant was not a genuine temporary entrant and was using the student visa program to maintain residence in Australia. The delegate noted that the applicant’s father resides permanently in Australia and the applicant has been self-employed since 2012 as a computer engineer. The delegate noted that the applicant has now been here for almost 10 years, has various qualifications in computing and information technology and is seeking to study vocational courses which would not provide any value to the applicant’s future.

13. The Tribunal has considered the material before it including material provided by the applicant prior to the hearing and evidence at hearing. In particular the Tribunal has considered the applicant’s response to a request for student visa information under s.359(2) of the Act where the applicant stated that he has several qualifications gained back in his home country of Israel including several IT and technical qualifications gained between 2008 and 2011, has had several jobs in the IT field between 2002 and 2011 back in his home country, and since his arrival here he has had four trips outside Australia in 2014, 2015, 2016, and 2017 visiting family and friends for up to a month at a time. He stated that since his arrival here he has completed several courses including a general English course in 2011, a Certificate IV in Information Technology Networking in 2012, a Diploma of Information Technology Networking in 2013, an Advanced Diploma of Network Security in 2014, a Bachelor of Information Technology in 2015, an Advanced Diploma of Leadership and Management in May 2019, and an enrolment in a Diploma of Project Management due for completion in October 2020.

14. He stated that he wishes to study in Australia because there are limited places offered for mature age students outside Australia and an Australian degree is more valued by employers.

15. He stated that he currently works as a network Systems engineer and is earning AU$37,000 per annum. He stated that prior to this he worked for eight years as a networking engineer earning $46,000 per annum. He stated that his total living costs here in Australia are $20,040 per annum.

16. He stated that he has a father in Australia and several relatives back in his home country of Israel including a grandmother, a sister and a cousin that he last saw in 2017. He stated that he was in regular contact with his sister who he speaks to weekly. He stated that he owns an apartment and has savings of AU$340,000 back in Israel.

17. He stated that a Diploma in Project Management, his current enrolment, will provide him with further knowledge and skills that will be recognised internationally and that these skills are necessary in a highly competitive environment which will help him succeed in his IT career.

18. The Tribunal has also considered material provided prior to the hearing and a submission by the applicant’s representative dated 6 September 2020 where the applicant’s representative has stated that he has a large family in Israel and owns assets back in his home country and has a genuine intention to depart Australia. He also provided material that he states verifies the applicant’s intention to leave Australia which includes material related to a cancellation of his ABN, his intention not to extend a lease on a business premises, and the sale of some business contents and of his motorbike, and other material.

19. At the hearing the Tribunal had a discussion with the applicant regarding his current enrolment in a project management diploma and its relevance and value to his future considering that he already had several degrees and diplomas in various fields associated with information technology, network security, general management and other fields gained back in his home country and more particularly here in Australia. The applicant stated that his current project management diploma is valuable to him because he doesn’t currently have the knowledge or experience in this area to progress his career. He stated that this will assist him in getting a high-level position in IT back in his home country.

20. The Tribunal has considered this evidence carefully and the material and evidence provided by the applicant. The Tribunal is concerned that the applicant has now been here for almost a decade having arrived here with high-level qualifications and professional experience in various fields associated with IT and network engineering. The Tribunal is concerned that the applicant would in fact have had to engage in reasonably high-level project management work in his previous professional life back in his home country. The Tribunal is further concerned that this experience and professional competence would have been augmented by the significant amounts of study and qualifications that he has managed to obtain here in Australia and the professional and career orientated work experience he would have gained over a number of years. As stated the Tribunal has considered this evidence carefully and does not find the applicant’s evidence credible that he needs to remain here on student visas to continue yet more low-level study at diploma level after having achieved significant career orientated tertiary qualifications and to have achieved significant business skills and professional development. The Tribunal does not find it credible that the applicant needs to study this course in project management to progress his knowledge or experience to progress his career. The Tribunal also notes that the applicant did not provide any evidence as to why he could not have studied such a course back in his home country. In fact, the applicant himself noted that Israel is known as a significant high-level employment centre for IT.

21. The Tribunal finds that the applicant has not given any reasonable reasons for not undertaking such study in his home country or region as similar courses would be available there. The Tribunal after careful consideration finds that the applicant is using his most recent spate of low-level enrolments, including one in leadership and management, as a means of maintaining residence in Australia and of using the student visa program to circumvent the migration program.

22. The Tribunal has also considered the value of the course to the applicant’s future and finds that the applicant is seeking to undertake a course that is not consistent with his high level of education and professional competence and experience and that this course will not assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal finds that this enrolment and previous enrolments over recent times are not relevant to the applicant’s past or proposed future employment either in his home country or a third country. The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program. The Tribunal particularly notes that it does not accept the statements by the applicant that he has not returned home to study because of the rigorous testing needed for amongst other issues, mature age students. The Tribunal has considered this and finds that the applicant’s significant qualifications and experience cast considerable doubt as to the veracity of such statements. The Tribunal finds that the applicant could easily have returned home at any point over the last few years to pursue his professional and or student learning activities.

23. The Tribunal had a discussion with the applicant regarding his circumstances here in Australia and his circumstances in his home country and notes that the applicant although living by himself has his father here with him in Australia who he said he originally arrived as a visitor to spend time with and also has regular contact with his family and friends back in his home country particularly with his sister, and did not indicate that he was having any particular issues maintaining contact with family and friends from here in Australia. The applicant has also travelled back to his home country to maintain his relationships. The Tribunal after consideration of these matters concludes that the extent of the applicant’s personal ties to his home country do not serve as a significant incentive for the applicant to return to his home country. The Tribunal finds that this lends weight to the contention that the applicant is using the student visa program to circumvent the migration program.

24. It is noted by the Tribunal that the applicant did not indicate that he had any military, political, or civil reasons why he could not return home and the Tribunal does not find this adverse to the applicant.

25. The Tribunal has also considered the applicant’s evidence that he is winding up his responsibilities here in Australia via selling motorbikes and closing up his business here in Australia. The Tribunal does not find this evidence relevant as the applicant could have various other reasons or motivations as to why he may be changing leases in business premises or selling various personal items. The Tribunal finds that this is not evidence that the applicant is genuine in his statements that he wishes to return home soon.

26. The Tribunal has also considered the applicant’s visa and immigration history here in Australia and notes at the applicant first arrived as a visitor or tourist. The Tribunal accepts in general terms that the applicant might come here as a visitor to see his father however the fact that the applicant first came here as a visitor or tourist and then changed the whole course of his education and business life to remain here for almost a decade is a consistent piece of evidence that would seem to indicate that the applicant was not genuine in his arrival here in the first place with the intention of only staying for a short period of time. The Tribunal finds that this lends more weight to the contention that the applicant is not a genuine temporary entrant.

27. 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.

28. 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

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

    Stephen Witts
    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.