Hamsiri (Migration)

Hamsiri (Migration) [2019] AATA 1996 (21 March 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aumarit Hamsiri
CASE NUMBER:  1713198
DIBP REFERENCE(S):  BCC2017/679216
MEMBER:Penelope Hunter
DATE OF DECISION:  21 March 2019
DATE CORRIGENDUM
SIGNED:16 July 2019
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:  The decision should read 21 March 2019

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Aumarit Hamsiri
CASE NUMBER:  1713198
HOME AFFAIRS REFERENCE(S):           BCC2017/679216
MEMBER:Penelope Hunter
DATE:21 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 21 March 2019 at 3:38pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – failure to attend Tribunal hearing – failure to provide any meaningful evidence – reasons for undertaking course in Australia – personal or economic ties to home country – evidence of current enrolment – past breaches of visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
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 Immigration and Border Protection on 5 June 2017 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 20 February 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.
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) because the delegate was not satisfied that the applicant was a genuine applicant for entry in stay in Australia temporarily as a student.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed
BACKGROUND AND INFORMATION BEFORE THE TRIBUNAL
Information before the Department
The applicant sets out in his application for the student visa that he is a 27 year old male from Thailand. He is single, has no accompanying family members as part of his application and does not list any parents or siblings outside Australia. He completed the year 12 equivalent of secondary school in Thailand and studied general English in Australia. He had not been offered any employment at the completion of his course and indicated that he would not be seeking employment at the completion of his course.
The applicant applied for the visa in order to undertake study in a Certificate III and Certificate IV in Business and a Diploma of Business Administration from 10 April 2017 to 18 September 2020. The applicant submitted a letter of offer from the Australian College of Vocational Studies Pty Ltd in support of his application.
Tribunal application.
The applicant has provided a copy of the decision of the delegate with his application for review. Where relevant, the Tribunal has set out the information contained in the decision of the delegate below.
On 11 February 2019, the Tribunal wrote to the applicant and invited him to attend a hearing to given evidence and present arguments in support of his case on 5 March 2019. In addition, the applicant was invited to provide all documents that he intended to rely upon to establish that he met the criteria for the visa.
On 15 February 2019, the Tribunal received a Hearing Response Form signed by the applicant in which he indicated that neither he, nor his representative, would attend the hearing on 5 March 2019. On that day the Tribunal registry wrote to the applicant and advised that if he did not appear at the hearing that it may decide his case without taking further action to allow him to appear before it. No further correspondence or submissions have been received from the applicant. The applicant did not attend the hearing on 5 March 2019.
The Tribunal is satisfied that the applicant has been invited to attend a hearing in accordance with s. 360(1) of the Act and in the circumstances has proceeded to determine the matter on the evidence before it.
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 satisfies cl.500.212 of Schedule 2 to the Regulations.
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 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.
In the visa application when the applicant was asked to provide details to support his ability his ability to meet the Genuine Temporary Entry criteria, and he responded “see my attached files”. With his application, the supporting evidence documented as filed is a copy of his passport, transcript of previous studies, a Certificate of Overseas Health Insurance and a letter of offer for his courses. He did not provide any statement addressing the Genuine Temporary Entry criteria. With his invitation to attend the Tribunal hearing the applicant was again invited to provide a written statement addressing the issue of whether he was a genuine applicant for entry and stay as a student by referring to Direction 69. The applicant has provided no statement addressing the Genuine Temporary Entry criteria to either the Department or the Tribunal. In assessing the applicant’s circumstances in his home country, the applicant has provided no reasons for not undertaking the course in his home country, and there are no details of any economic circumstances of the applicant. In his application the applicant revealed that he was single, he did not list any dependents, or any parents or siblings in his home country. The Tribunal is not satisfied that the applicant has reasons for studying in Australia. He not demonstrated that he has any personal ties to his home country or economic circumstances that would serve as a significant incentive for him to return. There is no evidence that the applicant does not have any military service obligations which would present a significant incentive for him not to return. Furthermore the applicant has not demonstrated that there is no political or civil unrest in his home country which may have influenced his motivations in apply for the student visa. The Tribunal therefore is not satisfied that the applicant has circumstances in his home country weigh in favour of the granting of the visa.
As to the applicant’s personal circumstances in Australia, once more due to the failure of the applicant to provide evidence addressing the Genuine Temporary Entry criteria, or to attend the hearing, the Tribunal is not satisfied that these circumstances support the granting of the visa. There is no information of any family or community ties that would serve as a strong incentive for him to remain. On his application form the applicant listed only “student” when asked for details of his employment. Yet in their decision, the delegate noted that the applicant’s visa work conditions had been VIVO checked by employers, a factor that indicated that the applicant had been looking for work. Despite being on notice of this issue from the decision of the delegate, the applicant has chosen to provide no further information to the Tribunal regarding his circumstances in Australia. In addition, delegate raised concerns that the applicant was using the student visa system to maintain ongoing residence. This was because the applicant had no valid visa to remain in Australia when he lodged the application under review, his previous visa was cancelled due to non-compliance with the visa conditions. Despite also being on notice of this issue from the decision of the delegate, the applicant has provided no further evidence or submissions to the Tribunal regarding his circumstances. He had only provided a letter of offer from his education provider with the visa application, the delegate has noted in their decision that no valid Confirmation of Enrolment (COE) had been provided to the Department. With his invitation to attend the Tribunal hearing, the applicant was also requested to provide evidence of his current COE and documents that show his past studies in Australia. In the absence of evidence of a current COE the Tribunal cannot be satisfied that the applicant is enrolled or that he has made any progress in his proposed business courses since he lodged his visa application. The combination of his circumstances prior to applying for the visa, and the lack of evidence of enrolment or course progression, indicate to the Tribunal that the applicant may be using the student visa system as a means of maintaining ongoing residence. The applicant has also provided no evidence to satisfy the Tribunal of his knowledge of his intended course, his education provider or about living in Australia.
As to the value of the course for the applicant’s future, once more the applicant has not addressed this in his application, evidence or provided submissions. The applicant did set out in his application form that he was not seeking employment, and from this response the Tribunal cannot be satisfied that the applicant’s proposed course would assist the applicant to obtain employment or improve his employment prospects in his home country. Similarly, in the absence of evidence, the Tribunal is not satisfied as to the relevance of the applicant’s courses for his career, or that they would improve his remuneration in the future. The applicant has not demonstrated the value of the course to his future.
The migration history of the applicant is also of concern. While there is no information that the applicant has applied for a visa to Australia or another country that has been refused, the delegate has set out in their decision circumstances that demonstrate that the applicant has not complied with conditions of his previous visa. Particularly, the applicant had only completed an ELICOS course since commencing studies in 2013. He did not study his proposed higher education course, a Bachelor of Interactive Media, and as a result his previous student visa was cancelled on 10 March 2017 due to breach of visa condition 8516. It was also noted that the applicant was not studying from 25 August 2014 to 9 November 2015 and again from 21 November 2015 to 3 April 2016. The applicant has not addressed, or provided any evidence to dispute, these findings by the delegate with his application to the Tribunal. These factors also indicate that the applicant is using the student visa system as a means of maintaining residence.
On the basis of the above considerations, and the applicant’s failure to provide any meaningful evidence to support his application and in particular address the visa criteria at the Department level or upon review to the Tribunal, 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).
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.
Penelope Hunter
Member
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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.whether 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
g.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;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.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
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
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 1996

21 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction