Jayamanna Mohottilage Dona (Migration)

Jayamanna Mohottilage Dona (Migration) [2021] AATA 2149 (30 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Iranga Jayamanna Jayamanna Mohottilage Dona
Mr Nuranjith Saseen Jayasinghe Walpola Pathirannehelage
Mr Leon Jayasinghe
Miss Leana Jayasinghe
CASE NUMBER:  1920591
HOME AFFAIRS REFERENCE(S):         BCC2018/5745165
MEMBER:D Triaca
DATE:30 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 30 March 2021 at 11:49am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– genuine temporary entrant criterion – applicant’s proposed further study does not offer any real value to her future – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.212
CASES
Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16
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 Home Affairs on 11 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 20 December 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.
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).
The applicants appeared before the Tribunal on 29 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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, 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.
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.
This is made plain from the following statement of Logan J in Kumar v Minister for Immigration and Border Protection (2020) FCAFC 16 at [4], ‘Of course the Minister’s directions were a relevant consideration. How could it be otherwise in light of s 499 of the Act? But they were guidelines. Reading them as a whole, the Minister did not purport to elevate them beyond that, only to offer guidance to the end of consistency in public administration. Moreover, as Derrington and Thawley JJ explain, the Minister explicitly counselled against a mechanical, “checklist” approach. He recognised that factors might not be all one way; hence his reference to, “on balance”. All this was done in respect of a visa eligibility for which has as a criterion a subject which inherently involves, “a matter of opinion or policy or taste” in terms of satisfaction as to whether an applicant is a genuine student.’
Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in accordance with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]
[1] See Singh [2019] (Migration) AATA 2993 at [13]
[2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292
The issues in this case arose in the following circumstances, the main applicant is a 30 year old citizen of Sri Lanka (applicant). There are Secondary Applicants to the application, the applicant’s Husband and two children. The applicant first arrived in Australia on 11 September 2011. She has resided here since that time on a series of student visas, associated bridging visas and a 485 visa granted in June 2017, which ceased in December 2018. On 20 December 2018 she applied for a further student visa. On 11 July 2019 a delegate of the Department refused his application (delegate’s decision). She subsequently applied to the tribunal for a review of the delegates decision and she provided the tribunal with a copy of that decision.
The tribunal has concluded that the decision to refuse the applicant a student visa ought to be affirmed in this case, for the reasons which are set out below. In reaching its decision, the tribunal has had regard to:
(a)The delegate’s decision record;
(b)The applicant’s original written visa application;
(c)The oral evidence and arguments of the applicant presented at the hearing;
(d)All written material filed by or on behalf of the applicant in relation to this case;
(e)Other relevant documents on the Tribunal and Department files;
(f)Applicant’s written response to the tribunal’s invitation to provide further information pursuant to s.359(2) of the Act.
(g)Confirmation of Enrolment documents and Conditional Letter of Offer dated 8 February 2021;
(h)Written Statement of the applicant addressing Genuine Temporary Entrant criteria.
The applicant’s academic record is a good one. Since arriving in Australia, she has successfully completed ELICOS, Foundation Studies in 2012 and a Bachelor of Accounting in 2017. She did not study whilst on a 485 visa, she says that she was pregnant during this period and caring for young children. She returned to study in early 2019 and completed a Diploma of Leadership and Management in February 2020. She commenced an Advanced Diploma of Leadership and Management in May 2020 and is due to complete that course in May 2021. She is then intending to study a Diploma of Community Service at AIBT Global and says that she should complete this course in June 2022 taking her stay in Australia to 11 years. By this application she is seeking to remain in Australia to enable her to complete her current course and the proposed Diploma of Community Service.
The applicant says at the completion of her studies she will return home to Sri Lanka and take up a role in her Husband’s family business in Sri Lanka in management. She says that the purpose of studying the Diploma of Community Service is to enable her to help people in her local community who have suffered due to COVID-19. She wishes to do something to support Sri Lankan people.
I do not consider there is any good reason why the applicant requires a further fifteen months in Australia studying at lower levels than her previous university level study. I accept that she may wish to help people in Sri Lanka. I do not consider she requires a formal qualification in order to do so. The proposed Diploma does not appear to bear any relevance to the applicant’s future plan to work in her husband’s family business. Furthermore, I do not consider that she requires completion of the Advanced Diploma of Leadership and Management to return home to Sri Lanka and work in that business. I consider that the applicant is already sufficiently well qualified to return home and undertake a management position in the family business. Alternatively, she is well qualified to seek a role in the employment market. She has a Bachelor Degree and a Diploma of Leadership and Management. There is nothing in the evidence to suggest that she requires further study.
In these circumstances, I do not consider the current or future study offer any real value to her future. I do not consider these courses are consistent with her level of education. The current course is related to her previous study and I place minor weight in her favour. However, her proposed study does not appear to bear any relation to her previous study or future employment. I do not consider that the current or proposed study is likely to improve her employment prospects in her home country or a third country. It follows that I do not consider the current or proposed study is likely to increase her remuneration in her home country.
It is in the applicant’s favour that she has successfully continued to study despite the delegate’s decision and the uncertainty surrounding this application. It is also in her favour that she appears to be a capable student who applies herself to her studies. However, these favourable matters do not allay my concerns in relation to the lack of value in these courses. The applicant has demonstrated an ability to study at a high level. I do not accept there is good reason for her to study at lower levels. It seems to the tribunal that the purpose of the applicant pursuing study at lower levels in Australia is to maintain an ongoing residence here. This is particularly so in relation to the Diploma of Community Service which appears to be completely unrelated to her previous study.
There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.
The applicant states, and the Tribunal accepts that she has no concerns in relation to political or civil unrest in her home country.
The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.
The applicant’s family in Sri Lanka are her parents, brother and in laws. She has visited home on three occasions since first arriving here. I accept her evidence that her parents and in laws have also travelled to Australia to visit the family and they are generally close. I accept that she speaks to her family every day by telephone or social media. I do not consider that her association with Holy Cross College constitutes an additional tie to Sri Lanka, noting that she has not resided there for close to a decade. Whilst her ties may be close, the evidence does not support the proposition these personal or family ties are of such a nature that they operate as a significant incentive for the applicant to return home.
The applicant’s immediate family reside with her in Australia and are secondary applicants to the application. I consider their presence in Australia constitutes a tie to Australia that operates as a strong incentive for her to remain here. The applicant’s Husband works in Australia as an NBN contractor. The applicant works part time as an account manager. Whilst I do not consider the evidence suggests that this work, an the ability to earn Australian dollars in employment constitutes an economic incentive for her to remain here, I do consider that ties of this nature reflect the fact that the applicant and her family are well settled here, in stable employment and seem to enjoy living here. Their children were both born here. I consider that such ties with Australia are likely to operate as a strong incentive to remain here.
The applicant says her family own property in Sri Lanka and a vehicle in Australia. I accept this evidence. I do not consider property owned in either Australia or Sri Lanka is likely to operate as a significant incentive for her to remain here or return home. As stated above, I do not consider that her economic circumstances are such that they operate as a significant incentive to either remain here or return home.
The applicant has travelled between Australia and Sri Lanka without any issues. They appear to have complied with the requirements of their various visas since arriving here. In these circumstances I make no adverse findings in relation to their travel or immigration history.
There do not appear to be any other matters relevant to the application.
I have considered all the evidence before the tribunal. I do not consider the applicant’s proposed further study offers any real value to her future. She is very well qualified academically and I do not accept that she requires further, lower level study in order to return home to Sri Lanka and advance her career. In the circumstances, I refuse the application.
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).
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.
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.
Secondary Applicants
In circumstances in which the main applicant does not meet the criteria for the granting of a student visa, the Secondary Applicants also fail to meet those requirements.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Dominic Triaca
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.

[2021] AATA 2149

30 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Intention

Procedural Fairness

Statutory Construction