Heiyanthuduwage Don (Migration)

[2020] AATA 2729

Heiyanthuduwage Don (Migration) [2020] AATA 2729 (14 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hemantha Saman Gunasekara Heiyanthuduwage Don
Mrs Shashika Dilini Mudalige Sinhara Mudalige
Mr Sanuka Lakwidu Gunasekara Heiyanthuduwage Don

CASE NUMBER:  1821447

HOME AFFAIRS REFERENCE(S):          BCC2018/2419392

MEMBER:Steven Griffiths

DATE:14 June 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 14 June 2020 at 5:20pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, residence, study, work and travel history – period of non-enrolment – enrolment at lower AQF level and in different subject area – value of course to future employment – no health insurance in breach of visa conditions – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 360(1)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a), (b)

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 3 July 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 5 June 2018. 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 visas 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).

4. On 24 October 2019 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicant by email and advised that, if the information was not provided in writing by 7 November 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The Tribunal notes a response to the s.359(2) of the Act request for information was received on 7 November 2019.

6. On 22 May 2020 the Tribunal wrote to the applicants inviting them to a hearing, pursuant to s.360(1) of the Act, scheduled for 11 June 2020.  

7. The Tribunal notes the applicant provided a submission on 4 June 2020.

8. The applicant appeared before the Tribunal on 11 June 2020 to give evidence, respond to questions and present arguments.

9. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations, being if the applicant was a genuine temporary applicant for entry and stay as a student.

13. Clause 500.212 states the following must be satisfied:-

    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.

14. 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.

15. 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.

16. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the primary applicant with his application for review.

17. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 7 November 2019 as a response to the s.359(2) of the Act request for information, which includes:-

    (a)Completion of two accounting courses between May 2001 and June 2008 in Sri Lanka.

    (b)Arrived in Australia February 2009 and has returned to Sri Lanka in December 2013, January 2017 and November 2017 for a total of 80 days.

    (c)Completed an Advanced Diploma of Accounting, a Bachelor of Accounting, a Graduate Diploma of Management (Learning) between February 2009 and June 2019.

    (d)Intended to study a Diploma of Business from November 2019 to November 2020.

    (e)Has worked in Australia from May 2009, in six positions, continuously to now.

    (f)Australian Government Confirmation-of-Enrolments for courses between July 2011 and June 2019.

    (g)Letter of Offer to study a Diploma of Business from 15/11/19 to 13/11/20.

    (h)Details on transfer of land from father to applicant in Sri Lanka.

    (i)Academic Transcripts for courses studied between 2009 and 2016.   

18. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 4 June 2020, being a Australian Government, Department of Education, Skills and Employment, Overseas Student Confirmation-of-Enrolment, Certificate lll in Commercial Cookery, 20/4/20 to 18/4/21 and Graduate Diploma of Management studied 15/6/18 to 14/6/19 Letter of Offer.

19. The applicant is a 40-year-old male citizen of Sri Lanka who arrived in Australia on 11 February 2009 on a Student 572 Visa granted 3/2/09 and to cease 15/3/11. He was granted a Student 573 Visa on 23/5/11 and to cease 30/8/13. He was granted another 573 Visa on 18/10/18 and to cease 15/3/15. He was granted another 573 Visa 11/5/15 and to cease 15/3/16. He was granted another 573 Visa 27/4/16 and to cease 30/8/16. He was granted a Graduate 485 Visa 5/12/16 and to cease 5/6/18 and has been on a WA-010 Bridging Visa from 5/6/18.

20. The secondary adult applicant is 36-year-old female citizen of Sri Lanka who arrived in Australia on 11 February 2009 on a Student 572 Dependent Visa granted 3/2/09 and to cease 15/3/11 and has remained as a dependent applicant to the applicant at all times.

21. The secondary minor applicant is a 10-year-old male citizen of Sri Lanka who arrived in Australia on 7 October 2010 and has been a dependent applicant to the applicant at all times.

22. The Tribunal notes the applicant has left Australia three times for an approximate total of 85 days since arriving 11/2/09.

23. The Tribunal notes the secondary adult applicant has left Australia five times for an approximate total of 540 days since arriving 11/2/09.

24. The Tribunal accepts the oral evidence of the applicant that his wife left Australia for Sri Lanka while pregnant with their son to be with family, gave birth and then returned to Australia when the child was 9 months old.

25. The Tribunal accepts the documented and oral evidence of the applicant that the secondary adult applicant is pregnant, with the baby expected 20/8/20.

26. The Tribunal accepts the documented and oral evidence of the applicant that he has been working since May 2009 and that his wife has been working since 2014.

27. The Tribunal accepts the oral evidence of the applicant that he received financial support from his family in Sri Lanka on occasions until working as while on the Graduate 485 Visa.

28. The Tribunal notes the oral evidence of the applicant that he and his wife “not much” in the bank at this time but was unable to provide a figure and places little weight on this.  

29. The Tribunal notes the oral evidence of the applicant that while he and his family have been financially independent since 2018, their families have continued to offer financial assistance, but it has not been required. 

30. The Tribunal accepts the documented and oral evidence of the applicant that since he commenced studying in Australia he has completed courses at Advance Diploma, Graduate Diploma and Bachelor level.

31. The Tribunal accepts the oral evidence of the applicant that when he completed his last course in June 2019, he had intended to undertake a Diploma of Business from November 2019, but this course was not commenced, noting that a reason for not commencing this course was not provided and places weight on this.

32. The Tribunal notes the applicant was not enrolled in a course of study from June 2019 to April 2020 and determines this 10-month period of no enrolment to be significant.

33. The Tribunal accepts the documented and oral evidence of the applicant that he commenced a Certificate lll in Commercial Cookery on 20 April 2020 and due for completion 18 April 2021.

34. The Tribunal notes the oral evidence of the applicant to the question as to why he has developed in an interest in the food industry and commenced study is based on the role he has with his employer since August 2019.

35. The Tribunal notes the oral evidence of the applicant that his role with the employer is defined as “dispatch worker” and that the employer us involved in producing nutritional supplements, and questioned the applicant on how this role and the product produced would put him in a position of developing an interest in the food industry, and determines that the oral evidence of the applicant to be lacking in detail and reasoning and it not accepted.

36. The Tribunal notes the documented evidence of the applicant since the lodgement of the student visa application in June 2018 has made no reference to an interest in the food industry and determines that the enrolment by the applicant in a Certificate lll in Commercial Cookery, after 10 years of accounting and business studies, to be significant.

37. The Tribunal notes the oral evidence of the applicant that studying a Certificate lll in Commercial Cookery is about him developing other skills to assist with a career in the food industry but he does not aspire to be a cook or chef, without providing the Tribunal with a detailed plan on how to use this knowledge in the future and places weight on this.

38. The Tribunal notes the oral evidence of the applicant that he will require bank finance in Sri Lanka to establish the food industry business he wishes to pursue, but has not made contact with any banks and places weight on this.

39. The Tribunal notes the oral evidence of the applicant that he wishes to establish a food industry business in Sri Lanka, and has completed business studies in Australia, but he has not created a business plan for his proposal and places weight on this.

40. The Tribunal accepts the oral evidence of the applicant that he did not investigate study opportunities in Sri Lanka for a course similar to Certificate lll in Commercial Cookery and places weight on this.

41. The Tribunal notes the oral evidence of the applicant that he and his family will return to Sri Lanka after the completion of his current course of study in April 2021.

42. The Tribunal has considered the oral evidence of the applicant on the study area change, and while respecting the option exists for all to change work and career aspirations, is determines this change of study area is not based on an interest in the food industry and a focus on career study needs, but an attempt for he and his family to remain living in Australia.

43. The Tribunal accepts the oral evidence of the applicant that he is in regular contact with his family in Sri Lanka.  

44. 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).

45. In accordance with the ministerial direction, the Tribunal asked the applicant of any circumstances in Sri Lanka that may induce him to apply for a student visa as a means of remaining in Australia indefinitely. The applicant provided oral evidence to the Tribunal that there are not any reasons why he cannot return to Sri Lanka and that he does not have any issues concerning military service, political or civil unrest.

46. There is no particular evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.   

47. 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.

48. 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).

49. The Tribunal notes the documented and oral evidence of the applicants having a private health insurance policy in place to 14 August 2019 only, accepting that he has not had a policy in place for 10 months, with the Tribunal determining this to be a significant breach of known visa conditions.

50. The Tribunal accepts the oral evidence of the applicants that they have at all times complied with work limitation conditions imposed.

51. The Tribunal notes the documented and oral evidence of the applicant that he was not enrolled to in a course of study from June 2019 to April 2020 and determines this to be a significant breach of known visa conditions.

52. 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).

53. 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.

54. 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

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

    Steven Griffiths
    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.