JUSSAB (Migration)

[2020] AATA 3787

JUSSAB (Migration) [2020] AATA 3787 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nadia Abdullatif JUSSAB
Mr Khalid Mhogdadi MOHAMMED
Ms Anayah NOREEN
Ms Areej Khalid MOHAMMED

CASE NUMBER:  1915423

HOME AFFAIRS REFERENCE(S):          BCC2019/1273677

MEMBER:D Triaca

DATE:4 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 04 September 2020 at 11:22am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study at lower level and in different subject area than previous study in husband’s country – vague plans for future employment – no evidence of study between delegate’s decision and receiving tribunal’s request for further information – husband and children in Australia, families in own countries – decision under review affirmed

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

CASES
Hasran v MIAC [2010] FCAFC 40  

Singh (Migration) [2019] AATA 2993

Vu Vu (Migration) [2019] AATA 5740

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 30 May 2019 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 13 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.

4. The main applicant (applicant) is a 31 year old citizen of Tanzania. There are three Secondary Applicants on the application, the applicant’s spouse and two children

5. The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 7 May 2020. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

6. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant’s nominated address, being the address provided by the review applicants in connection with this application for review.

7. On 20 May 2020 the Tribunal extended time for the applicant to respond to the Tribunal’s invitation. On 18 June 2020 the applicant responded to the Tribunal in writing (359 Response) and provided the Tribunal with Confirmation of Enrolment documents. The applicant consented to the Tribunal determining the application without a hearing.

8. In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

10. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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)

13. 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?

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. Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according 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]

17. The issues in this application arise in the following circumstances. The applicant is a 31 year old citizen of Tanzania. Her Husband, one of the Secondary Applicants, is a citizen of India. The applicant arrived in Australia on 13 July 2017 as a dependent on her Husband’s 485 visa. She fell pregnant in February 2018 and returned to her home country on 1 April 2018. She delivered a baby in November 2018 and returned to Australia in February or March 2019. On 13 March 2019 she applied for a student visa proposing to extend her stay in Australia until September 2020. She was proposing to study a Diploma of Leadership and Management.  On 30 May 2019 a delegate of the Department refused her application (delegate’s decision). She subsequently applied to the Tribunal for a review of that decision.

18. The tribunal has read and had regard to documents provided by the applicant to the Department and the Tribunal including her 359 Response; delegate’s decision; Confirmation of Enrolment documents; GTE Statement; Application for a Student Visa 13 March 2019; Marriage Certificate; Passports; Certificate of Overseas Student Health Cover.

19. The applicant says her plan is to settle with her Husband in India. She states in her GTE Statement that she hopes to land a ‘well paid job back in India.’ And that the proposed Diploma of Leadership and Management will ‘make me ready for the workforce back in India.’ In her 359 Response, she says “my research showed me that students return from Australia are highly regarded and secured top notch jobs. I need to do this study and return to India where I finally intend to settle.” It is fair to say her plans for the future are vague and uncertain.

20. For the following reasons, the application is refused.

21. The Tribunal has concerns in relation to the material filed on behalf of the applicant. These concerns have not been allayed by the applicants’ 359 Response.

22. The applicant states she holds a Bachelor of Physiotherapy from Dr. NTR University of Health Studies in India, completed in 2014. In these circumstances, the Tribunal considers the applicant is well placed to return home or to a third country such as India and find suitable employment. The applicant has not provided any real explanation as to how the proposed study is likely to improve her prospects of employment of assist her to obtain employment in her home country or a third country. It does not appear on any view that she will be in a better position to find suitable employment if she completes the proposed study, as opposed to simply returning to her home country, or India, and utilising the qualifications she has previously obtained. It follows that the Tribunal does not consider the proposed study is likely to increase the applicant’s remuneration upon her return home or her return to India.

23. The Tribunal is concerned that the applicant is intending to study at a lower level than her university accomplishments. It does not consider the proposed study represents any academic progress. It does not consider the proposed study is consistent with the applicant’s level of education.

24. The applicant has a reasonable understanding of living in Australia having regard to her GTE Statement. The does not consider the applicant has advanced reasonable reasons for not undertaking study in her home country. It does not appear that she has really considered it. She simply states that there is no facility for such studies in her home country. Without any evidence in support, the Tribunal does not accept that she is unable to study a similar course in her home country.

25. The circumstances of this current enrolment are also concerning to the Tribunal. The applicant applied for a student visa on 13 March 2019. At that time, she proposed studying a Diploma of Leadership and Management. Her application was refused on 30 May 2019. There is no evidence she engaged in any form of study after this refusal. Her current CoE is an enrolment in the same course followed by an Advanced Diploma of Leadership and Management. She enrolled in these courses on 17 June 2020. In the period between her initial enrolment and current enrolment there appears to have been sufficient time for her to complete the first Diploma. There is no explanation as to why she did do so. In the absence of any explanation as to why she did not study for a period of at least a year whilst waiting for this application to be determined, the Tribunal considers she made a definite choice not to study. This indicates that she is motivated by factors other than study as she failed to take the opportunity to study when it was available to her in 2019. This weighs against granting the application.

26. Further, the applicant’s choice of education provider changed between the time of her GTE Statement, which refers to Smart College and her present enrolment in George Brown College. This means that there is little utility in her GTE Statement as it refers to a different education provider, albeit the same or similar course.

27. The applicant’s family is stated to be her Husband and two children. They reside with her in Australia. She appears to have previously lived and studied in India. She says she intends to return to settle in India with her Husband at the conclusion of her course. She says her extended family lives in Tanzania. She speaks to them via whatsapp and video call. Her Husband’s family lives in India. She says she is socially and emotionally attached to her families. The applicant returned to her home country for approximately 8 months in 2018 due to her pregnancy. There is no indication as to the frequency of her contact with her extended family or in laws. There is no evidence to suggest that the applicant’s family ties to her home country operate as a significant incentive for her to return home.

28. The applicant says she has no community ties to Australia. Her focus is on family and friends. However, the tribunal considers that the presence of the applicant’s Husband and children in Australia operates as a tie to Australia that is a strong incentive for her to remain here.

29. The applicant’s circumstances in her home country relative to others there are that she belongs to ‘one of the few opulent and financially sound families in the city.’

30. The applicant states, and the tribunal accepts, that she has no concerns in relation to political or civil unrest, or potential military service commitments in her home country.

31. The evidence in relation to the applicant’s economic circumstances is as follows. She says that she expects to return to India and earn approximately $30,000 per annum. As the living cost in India is lower than Australia, this salary is high by Indian standards. She has previously worked in Australia as a as a store person in a fruit supplier. There is no indication as to whether she presently works. She earned $15,000 per annum in that role. Her annual expenses are approximately $31,860 per annum. There is no evidence in relation to the employment of the Secondary Applicant. She says she is financially supported by her family. In her application for a student visa she states she has ‘enough funds in bank account’ in relation to the funding for her stay. She says that her family have ‘multiple investments’ and ‘various sources of income including commercial rentals and premiums.’ In her 359 Response, she declares assets in property in Tanzania valued at $170,000AUD and her in laws family home in India valued at $300,000AUD. She also declares ‘other assets’ in India valued at $200,000AUD.

32. The Tribunal does not consider the property held in India or Tanzania operates as an incentive for the applicant to return home. Property may be readily sold and converted into cash or retained and utilised to produce income in the form of rent. Neither scenario requires the applicant to leave Australia. There is insufficient evidence to assess whether economic factors operate as an incentive for the applicant to return home or remain in Australia. Accordingly, the applicant’s specific economic circumstances are a neutral factor on the application.

33. The applicant’s evidence is that she has travelled between Australia, Tanzania and India on multiple occasions. She has also travelled to New Zealand. Her travel appears to have been without issue. She appears to have abided by the conditions of her various visas since arriving in Australia. The Tribunal makes no adverse findings in relation to her travel and immigration history.

34. Having regard to all the evidence, the Tribunal does not consider the applicant is a genuine applicant. She had ample opportunity to undertake study in Australia during 2019. She chose not do to so. She re-enrolled in her studies only after the Tribunal had written to her requesting further information. Her background, in particular her university education, puts her in a strong position to find suitable employment in either India or Tanzania. She has not demonstrated any reason why her situation is improved by completing a vocational level course in Australia. In circumstances in which she does not have a significant incentive to return home, the Tribunal considers that her application for a student visa is motivated by factors other than study, and she is utilising the student visa program as a means of maintaining an ongoing residence in Australia.

35. Secondary Applicants

36. In circumstances in which the main applicant has not satisfied the primary criteria for the grant of a student visa, the Secondary applicants also fail to meet the criteria for the grant of a student visa.

37. 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).

38. 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.

39. 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

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

    D 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.