Khatun (Migration)

[2019] AATA 4995

Khatun (Migration) [2019] AATA 4995 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rabeya Khatun
Mr Mohammad Harun or Rashid Majumder

CASE NUMBER:  1719322

HOME AFFAIRS REFERENCE(S):           BCC2017/2489956

MEMBER:David Barker

DATE:30 July  2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 July 2019 at 3:41pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – no current enrolment – plans to work and reside in Australia – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.211, 500.212; 1.03

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 Immigration and Border Protection on 7 August 2017 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 12 July 2017. 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) because they were not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal by teleconference on 30 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

   Background

6. The applicant is a national of Bangladesh and is 38 years old.  The second named visa applicant is her spouse and is also a national

7. On 5 July 2019, the Tribunal wrote to the applicant inviting her to attend a hearing on 25 July 2019. That invitation among other matters, requested the applicant provide evidence of her current studies, an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached. Due to technical difficulties it was not possible to establish contact with the applicant by teleconference on 25 July 2019 and a further hearing was scheduled on 30 July 2019.

8. The Tribunal received no submission or other documents from the applicant in relation to her current studies or related issues prior to the hearing.

   The hearing

9. At the start of the hearing the Tribunal explained that amongst the essential criteria to meet to be successful in relation to an application for a Subclass 500 Student visa is that an applicant is studying, or has a current offer of enrolment in a suitable course of study.  The Tribunal explained to the applicant that it had information available to it, which she had not provided, which was relevant to meeting these criteria, which it would put to her in an appropriate manner during the hearing.

10. In response to a question as to whether she was currently studying or had a current offer of enrolment in a course, the applicant gave evidence she finished an Advanced Diploma of business in or around August 2018 and had not subsequently studied or enrolled in any further courses .  She said she has thought of undertaking a master of Business Administration, but was waiting until she knew the outcome of her review before spending the money that would be involved to undertake such a course.  She said she had not wanted to enrol in a  course in case the outcome of the review was known, as if she was not successful with her appeal, she would have wasted money doing the course .

11. With regard to her future plans, the applicant aid she wants to remain living and working in Australia.  Putting this in context she explained that she was initially sponsored financially by her mother, who visited Australia in 2014 and after being here, encouraged the applicant to enrol in further study and pursue permanent residency in Australia.  The applicant said she went along with this advice, as when compared to her home country, Bangladesh, Australia is a much more secure country to live in and she considers her career prospects to be much better here. In response to a question as to her and the second named work history in Australia, the applicant said she has worked in a variety of retail sales and food outlet roles and also for a period of time as an assistant accountant.  She said at the present time she is working as a child care educator, earning from $500 to $600 per week.  She said her spouse has mostly worked as a sous chef, but is currently working in a meat packaging factory, earning from $700 to $800 per week.

    Particulars of information put to the applicant pursuant to s.359AA of the Act

12. The Tribunal put particulars of  information to the applicant from  a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant, pursuant to s.359AA of the Act, after first explaining to her this information would, subject to her comment and response, provide the reason, or part of the reason, for affirming the decision under review.  The Tribunal explained to the applicant that she could request time to consider her response and that the Tribunal would consider any such request. 

13. The  particulars of the information put to the applicant was:

    ·     the PRISMS records indicate that her enrolment in an Advanced Diploma of Business, which finished on 19 August 2018;

    ·     there is no indication on the PRISMS records that he is currently enrolled in any course of study, or that he had completed any courses since December 2016.

14. The Tribunal explained to the applicant that this information was relevant because it appears to indicate she is not currently enrolled in a course of study.  The Tribunal told the applicant that if the Tribunal relies on that information it may find she does not meet a threshold requirement for the grant of a Student visa and that if the Tribunal finds she is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the student visa. 

15. The applicant did not request any further time to consider her response and said that from her side of things, she had thought to wait until the tribunal made a decision about her review before she might think about undertaking further study.  She said she had not thought as to whether she had to study to get her visa back and as she obviously did not do more study, she was wrong if indeed it was the case she would not qualify for the visa unless she had enrolled in further study.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

18. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

19. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

20. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files, including her comments and response to the particulars of information put to her pursuant to s.359AA of the Act regarding the PRISMS records of her studies in Australia. The applicant has not provided any subsequent comments or submissions to the Tribunal in relation to this information.

21. The Tribunal accepts the applicant has undertaken study whist she has been in Australia and that an Advanced Diploma of Business, in which she had enrolled finished in August 2018.  The Tribunal acknowledges the applicant has ongoing familial ties to Bangladesh, in the form of her mother.  However, the Tribunal accepts the applicant’s evidence that she would like to seek permanent residency in Australia, due to her evaluation that she has better career prospects here and that Australia, in her view, provides a more secure place to live than her home country.  Further to this and of relevance to her qualification for the Subclass 500 Student  visa, the Tribunal finds there is no evidence the applicant is currently studying, or that she has a current offer of enrolment in any course.  The Tribunal has considered these factors and all the other evidence provided by the applicant during the hearing and in the Department and Tribunal files. 

22. As a consequence the Tribunal finds cl.500.211 is not met.

    Second named visa applicant 

23. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second named visa applicant is unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.211.

24. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    David Barker
    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.