Kizhakkekara Kunjumohammed (Migration)

[2020] AATA 6033

Kizhakkekara Kunjumohammed (Migration) [2020] AATA 6033 (15 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammed Niyaz Kizhakkekara Kunjumohammed
Mrs Mumthaz Sulfiya Subair

CASE NUMBER:  1928050

HOME AFFAIRS REFERENCE(S):          BCC2019/2367806

MEMBER:Mark Bishop

DATE:15 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 15 September 2020 at 12:15pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of decision – meaning of ‘genuine applicant’ – applicant’s circumstances in home country – value of course – Diploma of Information Technology and Advanced Diploma of Network Security – immigration and visa history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

Yang v MIAC [2010] FMCA 890

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 20 September 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 3 May 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. On 15 May 2020 in this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a). The applicant responded to the Tribunal on 21 May 2020 by seeking an extension of time to provide a response. The Tribunal give an extension of time to reply until 12 June 2020. The applicant did not provide any information to the Tribunal after this date or provide a written response in any form.

4. The Tribunal did not receive any response to the before mentioned written invitation. That is the review applicant has not provided the Tribunal with any further information than that which was provided to the Department.

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

6. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear see Hasran v MIAC [2010] FCAFC 40 at [26]; Yang v MIAC [2-010] FMCA 890 at [40].

7. The Tribunal has considered whether, in the circumstances of this case, information that the review applicant meets the requirements of the Act and Regulations is likely to be forthcoming and whether the review applicant has had a fair opportunity to provide relevant information already.

8. The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has had regard to the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to Minister for Immigration and Citizenship v Li [2013] HCA18 (8 May 2013) regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC (4 February 2014) which considered analogous issues, as well as the recent decision of Kaur v Minister for Immigration and Border Protection [2014 FCA 915 (28 August 2014).

9. The Tribunal has reviewed all files in this matter. The applicant has had ample opportunity to provide information as requested in the recent past. The applicant sought and was granted significant time to obtain and provide information to the Tribunal to assist in determining the review application lodged by the applicant. A significant period of time has not expired. The applicant has chosen not to provide the information, seek a further extension of time, provide a reason for the inability to provide the requested information or provide a written submission to the Tribunal.

10. In these circumstances, for the reasons set out in this decision record above, the Tribunal considers that the review applicant has had a fair opportunity to provide relevant information.

11. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.

12. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations 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 review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is GTE.

    Genuine applicant for entry and stay as a student (cl.500.212)

15. 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?

16. 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.

17. 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.

    Meaning of ‘Genuine Applicant’

18. As has been often noted elsewhere in many Tribunal decisions while not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning. The Regulations also specify two constituent elements of a genuine student visa applicant.

19. First, an applicant is regarded as a genuine applicant because he or she ‘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. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.

20. The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered into with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.

21. Secondly, a genuine applicant is one who ‘intends to comply with any conditions to which the visa may be subject.’ There are several conditions that attach to student visas. The most important of these conditions oblige the visa holder to remain enrolled in a registered course of study, to make satisfactory course progress in their studies, and to attend classes.

22. Furthermore, if the visa holder changes their enrolment, they must avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa. These conditions reflect the very essence of being a student.

23. A genuine applicant must demonstrate both an intention to study and an intention to complete a course that is as challenging as the visa grant contemplates.

24. The Tribunal has carefully considered the delegate’s decision record dated 20 September 2019, a copy of which was provided to the Tribunal by the review applicant with the application for review.

25. The applicant provided a GTE Statement to the Department that outlined the following:  

    ·He is currently pursuing VET courses in IT;

    ·He completed a Bachelor of Arts in 2007;

    ·He worked in various management positions from 2007 until 2012. He sought change so he could earn a higher income;

    ·He applied for admission to Charles Sturt University in a Master of IT. He completed this course in 2016 and applied for a TR visa;

    ·He gained employment as an IT Support Technical Officer in 2017;

    ·He believed the competition for employment in his home country would be intense so he enrolled in a Diploma of Project Management in Australia. He completed this course in April 2019. He currently works in BP as a Customer Service and Console Operator;

    ·He decided to pursue further study in cyber security and enrolled in further IT courses in Networking and Networking Security. He outlined the skills that would be acquired in such courses, their industry relevance practical training and the understanding he would gain from various aspects of the courses;

    ·He outlined reasons for choosing ALTEC College as to academic excellence, modern campus, experienced academic team, the framework of improvement at the Collee, and quality student support services;

    ·He outlined reasons for studying in Australia;

    ·He outlined the growth of the IT industry in India, opportunities for professionals in IT in India, cost competitiveness of the IT industry in India, practical aspects of division production in India, growth of the internet in India and opportunities for employment in the IT sector in India;

    ·His wife is a secondary applicant in this review application;

26. The secondary applicant provided a written submission to the Department as follows:

    ·She supports her husband’s application for a student visa;

    ·She is educated to Bachelor level;

    ·She happily participated in an arranged marriage. She does not like being separated from her husband. She addressed reasons as to why her husband studies in Australia

27. The applicant provided copies of a Diploma in Project Management.

28. The applicant provided a copy of a COE in a Diploma of IT (Networking) that expired on 10 May 2020.

29. The applicant did not provide any proof of completion of the course relating to IT.

30. The applicant did not provide a written submission to the Tribunal.

31. The applicant did not provide any material to the Tribunal. The Tribunal is not aware of the applcaint’s academic progress in courses relating to IT post completion of his Diploma in Project Management.

32. On 16 April 2020 the Tribunal wrote to the applicant under s.359(2) of the Act with a Request for Information that addressed the following matters found under Ministerial Direction Number 69 (MD69) and required to be considered by the Tribunal as part of its decision-making process. Those matters were as follows:

    ·Personal details;

    ·Hearing Information;

    ·Information about courses undertaken before arriving in Australia;

    ·Information about work experience before arriving in Australia;

    ·Travel details to Australia and home country visits;

    ·Information about travel to other countries;

    ·Visa History;

    ·Enrolment and study in Australia;

    ·Work and expenses in Australia;

    ·Family circumstances;

    ·Information about community ties;

    ·Information about assets;

    ·Information about future plans;

    ·Information about other circumstances;

33. The applicant did not provide a response to the above Request for Information.

34. Excluding the information outlined above the applicant has not provided any information to the Tribunal. The Tribunal in this review application is limited to the delegate’s decision, material found on the Departmental file and summarised above at paragraphs 25 and 26, an expired COE’s found on the Departmental relating to a prior enrolment and a current COE an Advanced Diploma of Network Security.

35. The Tribunal notes this last COE is for a course scheduled to commence 3 November 2020 and conclude 9 August 2021. The applicant did not advise of payment of any portion of tuition fees for this course and the COE shows outstanding tuition fees of $5,500. The applicant did not provide any explanation as to his activities in Australia from May 2020 until November 2021. The applicant did not provide a current COE or other form of proof of enrolment in any course of study in the period May 2020 until November 2021.

    Applicant’s circumstances in his home country

36. The delegate made the following findings concerning the applicant’s circumstances in his home country:

    • I have considered the applicant’s circumstances in his home country according to information provided in support of his application.
    • The applicant has parents and a sibling currently residing in India. He is also married with no children. While his spouse is currently residing in India, the applicant has included her as a dependent and declared an intention for her to reside in Australia. The presence of the spouse in Australia represents a significant incentive to remain in Australia which is not outweighed by having other family members in his home country. I give further weight to the overseas family being less of an incentive to return after completing his studies, on the basis that in 2017, the applicant returned to India. He had completed his Master studies the year before and had ceased the three-month IT position the previous month before departing for India. During the visit he married, but rather than remain in India with his spouse, he returned to Australia after a visit of approximately three months in total and commenced a new course in Australia.
    • I also place weight on the fact that the applicant’s employment since 2013 has been in Australia and consider this a strong motivation to remain in Australia. He was last employed in India in 2011. Therefore, based on his evidence, I am not satisfied that his family, economic or other situation in India outweighs his potential economic circumstances in Australia, or provide a significant incentive to return to his home country at the end of his proposed studies.

37. The applicant has not challenged the above findings of the delegate in any way. He has not outlined a flaw or error in the findings of the delegate. The Tribunal is not bound by the decision of the delegate. The review application is a de novo application. The Tribunal brings a new and independent mind to this review application. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files, sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.

38. The applicant is married. He did not advise of any family business in India or any connection to such if it exists. He has resided in Australia since early 2013 and his returns to his home country have been for a limited period of time and although recently married has chosen to return to Australia. He has not provided any Certificates of Graduation or Statements of Attainment relating to academic progress post completion of his Diploma in Project Management.

39. He did not advise of any community ties in his home country (excluding his family and his new wife of course). He did advise of his background as a manager in India for a period of time post completion of a Bachelor degree and his desire to achieve further academic qualifications. The Tribunal notes the applicant has now successfully competed a complex degree in an area of potentially lucrative employment and has earned management qualifications that are an aid to employment in that field

1. He has not advised of any assets or business interests in his home country in his name. He has not outline title to property in his name in his home country.

2. He did advise of any employment detail in Australia.  He did not advise of remittances from home to fund his ongoing residence in Australia.

3. The Tribunal is aware the applicant has a wife in India and his parents reside in India. Excluding these family ties the applicant’s ties to his home country appear to be minimal. The Tribunal is of the view those circumstances do not serve as a significant incentive to return to the home country.

4. In his submission to the Department the applicant addressed reasons for studying in Australia.

5. The applicant did make submissions as to the utility of the form of education in India and his preference for further exposure to the education system in Australia. The applicant did not provide any independent commentary, academic reviews or website references that support his assertions to these matters. He did not advise of any meetings or negotiations with industry groups, trade associations or companies with business operations in China that supported his assertions. He did not provide any website references or other references to commentary that might discuss these matters and come to conclusions.

6. The applicant has been resident in Australia since July 2013. He has made commendable progress in his studies in that time. He has enrolled in different courses and completed important courses in IT and Project Management.

7. The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive for the applicant not to return to the home country.

8. The applicant did not address have any “…concerns about military service commitments or political or civil unrest in his home country”. The Tribunal does not make an adverse finding concerning cl.9(d) or (e) of MD69.

9. There was minimal information concerning the applicant’s circumstances in the home county relative to the circumstances of others in that country. The Tribunal does not make an adverse finding concerning cl.10 of MD69.

   Applicant’s potential circumstances in Australia

10. The applicant has lived in Australia for more than 7 years. He wishes to remain for a significant further additional period of time.

11. As outlined above the applicant has completed a number of courses.

12. The singular continuing feature of the applicant’s life in Australia is continuing residence in Australia. At key moments in his life he enrols and reenrols in different course of study. He does not return home and remain home. He does not return home to put in practice the theoretical skills or knowledge he might have gained in Australia. He does not return home to be with his wife and family or parents. In fact, his wife is a secondary applicant in this review application.

13. He chooses to remain in Australia and enrol again in courses of study relating to IT. The Tribunal has considered cl.12(a) of MD69 as to reasonable changes to career or study pathways. The Tribunal commenced his period of residency in Australia by seeking to study in IT, completed a complex degree at Mater level in IT, gained employment in an IT field, completed a Diploma in Project Management and now resides in Australia for a period of 6 months without being enrolled in his Advanced Diploma despite having advised the Department in his application for a Student Visa that was his intent. It appears to the Tribunal the applicant has been on a pathway of residence and the route of academic study has been the vehicle of choice.

14. The Tribunal is satisfied the applicant’s ties with Australia do present as a strong incentive to remain in Australia. The Tribunal is satisfied the applicant is using the student visa program to circumvent the intentions of the migration program.

15. The Tribunal is of the view the applicant has provided only the most basic and limited information about his chosen education provider, course content, course detail, educational objectives and possible future remuneration. He provided only the most general comment as to his educational purpose.

16. There is insufficient information before the tribunal as to cl.11(c) (d) and (e) of MD69 for the Tribunal to reach a view. The Tribunal does not make any adverse findings concerning cl.11(c) (d) and (e) of MD69.

    Value of the Course

17. The delegate made the following findings concerning the value of the course to the applicant:

    • I have taken into consideration the value of the Diploma of Information Technology and Advanced Diploma of Network Security courses to the applicant’s future.
    • The applicant has declared on the application form that he completed a Bachelor of Arts from India. He then completed a Master of Information Technology and a Diploma of Project Management in Australia. I consider this as evidence that the applicant has a positive study history by demonstrating he completes the courses he enrols in.
    • In the Genuine Temporary Entrant (GTE) statement, the applicant has specified that the proposed courses, in addition to his existing courses, will enable him to pursue employment in the information technology (IT) industry in India.
    • I accept the applicant’s claims regarding the quality of education in Australia, however I give less weight to how these courses will be of genuine benefit to his future employment pathway. In his statement he lists a large range of potential occupations: I am sure that I will get placed as senior network security specialist, ICT specialist, senior network engineer, senior systems administrator, network manager, senior network analyst, senior network design engineer, senior network solutions architect and such with my prestigious Australian degree.
    • As his career plan is very general, I am not satisfied his reasons for studying support a carefully considered and well thought out career plan, given the financial costs required to maintain studies while in Australia. Furthermore, his evidence does not demonstrate that the proposed Diploma and Advanced Diploma are preferred by potential employers in this industry, particularly as the roles he has described are senior and manager level positions.
    • Therefore, I give minimal weight to the applicant’s claims.

18. The applicant is studying or proposes to continue study in IT.  He has not provided any indication of any progress in his studies inIT post completion of his Diploma in Project Management. A GTE is expected to enrol in courses of study, progress in his studies and move to more advanced courses of study. The applicant has not provided to the Tribunal evidence of progress at all post completion of his Master of IT and Diploma of Project Management.

19. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files, sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.

20. The Tribunal does not accept there is much value in terms of the relevance of further study in a field allied to his current degree in IT as Master level. The applicant has failed to provide any independent commentary or letter or academic statement that there is value in the course proposed to be commenced in November 2020 that is not already covered by exposure, study and learning in a critical IT field at Master level.

21. The Tribunal is of the view the applicant is undertaking a course that is consistent with his current level of education. The Tribunal is unable to see how this course will assist the applicant to obtain employment or improve employment prospects in his home country.

    Immigration and Visa History

22. The delegate summarised the applicant’s immigration history as follows:

    • The applicant was granted a Student (subclass 573) visa on 27 July 2013 and made his first entry to Australia on 1 August 2013. Since then he has been granted a number of visas which are listed below:
    • Student Visa TU 573 Granted 16 April 2015
    • Temporary Skilled Graduate Visa VC 485 Granted 26 July 2016
    • Student Visa TU 500 Granted 14 August 2018

23. There is no evidence before the Tribunal that the above summary in paragraph 61 is incorrect.

24. The delegate summarised the applicant’s visa history as follows:

    • I have also considered the applicant’s visa and study history. After completing his Master in Information Technology in Australia, the applicant was granted a Temporary Skilled Graduate (subclass 485) visa which allowed him to work without restriction for two years. During that two-year period he was employed for three months in one Information Technology (IT) related occupation (from April to July 2017). He claims he was unable to remain in the position because he lacked the ‘basics.’
    • Based on his evidence, he does not appear to have continued applying for other IT occupations. This raises concerns that despite having a recent Master qualification and a visa that permitted him to work, the applicant was unable to gain any other IT related employment, in Australia. Given that the applicant has listed preferences for numerous IT occupations, it would appear reasonable that attempting to gain IT experience in one of these occupations would have increased his employability compared with non - IT related employment, even if not commencing at his preferred level.
    • However, since the applicant’s one IT position ended, his sole employment has been as a customer service and console operator for BP. I also note that the while the applicant held the VC 485, there were no study restrictions attached to this visa, which meant the applicant could have studied while the visa was in effect. I place weight on the fact that despite identifying a skill or knowledge deficiency that resulted in his IT job loss, the applicant did not attempt any studies to improve his employability for approximately another 12 months, and after the VC 485 ceased.
    •  Rather, just prior to the VC 485 ceasing, on 23 July 2018, the applicant applied for a TU 500 visa in order to study a Diploma of Project Management. This visa was granted and in effect for 9 months. It is positive that the applicant completed the course. However, the applicant’s evidence does not demonstrate that he successfully applied the Diploma qualification to change his employment to pursue his preferred career. In contrast, he continued his employment as a customer service and console operator.

25. The applicant has not challenged the above findings of the delegate in any way. He has not outlined a flaw or error in the findings of the delegate. The Tribunal is not bound by the decision of the delegate. The review application is a de novo application. The Tribunal brings a new and independent mind to this review application. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files, sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.

26. The Tribunal notes the applicant now wishes to remain in Australia until at least August 2021 bringing his stay as a genuine temporary entrant to more than 8 years (inclusive of his period of holding visas other than student visas).

27. The Tribunal notes that based upon the applicant’s submissions to the Department as outlined above is arguably the correct narrative of the applicant’s period of residence in Australia. The Tribunal does not have any material before that contradicts this finding of the delegate.

28. The Tribunal notes that the applicant has lawfully entered Australia, adhered to conditions attached to his visas and now seeks lawfully to remain in Australia for the purpose of study.

29. When considering all of the above the Tribunal is not persuaded the applicant will return to his home country at the expiry of his visa.

30. The applicant has been onshore for a lengthy period of time. He has repeatedly enrolled in courses in the VET sector. These courses are low cost and of short duration. The Tribunal finds the applicant has undertaken a series of short, inexpensive courses (albeit the same course).  The applicant has not provided any evidence of completion of any study post completion of his Diploma in Project Management. The Tribunal is of the view the applicant has been onshore for some time without successfully completing a qualification.

31. 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).

    Circumstances in His Home Country

32. The delegate made the following set of findings concerning this aspect:

    • I have considered the applicant’s circumstances in his home country according to information provided in support of his application. The applicant has parents and a sibling currently residing in India. He is also married with no children.
    • While his spouse is currently residing in India, the applicant has included her as a dependent and declared an intention for her to reside in Australia. The presence of the spouse in Australia represents a significant incentive to remain in Australia which is not outweighed by having other family members in his home country.
    •  I give further weight to the overseas family being less of an incentive to return after completing his studies, on the basis that in 2017, the applicant returned to India. He had completed his Master studies the year before and had ceased the three-month IT position the previous month before departing for India.
    • During the visit he married, but rather than remain in India with his spouse, he returned to Australia after a visit of approximately three months in total and commenced a new course in Australia.
    • I also place weight on the fact that the applicant’s employment since 2013 has been in Australia and consider this a strong motivation to remain in Australia. He was last employed in India in 2011. Therefore, based on his evidence, I am not satisfied that his family, economic or other situation in India outweighs his potential economic circumstances in Australia, or provide a significant incentive to return to his home country at the end of his proposed studies.

33. The applicant has not challenged the above findings of the delegate in any way. He has not outlined a flaw or error in the findings of the delegate. The Tribunal is not bound by the decision of the delegate. The review application is a de novo application. The Tribunal brings a new and independent mind to this review application. As outlined above the Tribunal has reviewed all available material on both the Departmental and Tribunal files and sought information from the applicant. The Tribunal does not have any evidence before it that suggests the above narrative of the delegate is incorrect. The Tribunal gives weight to the findings of the delegate.

    Decision

34. 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.

    Secondary Applicant

35. The secondary applicant is the spouse of the applicant. She provided a written submission to the Department. She did not provide a written submission to the Tribunal. The secondary applicant resides in India. Excluding a brief period after her marriage the applicant has not resided with the secondary applicant in India or Australia. The Tribunal has given consideration to the written submission of the secondary applicant  provided to the Department and summarised above at paragraph 26.

36. 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

37. The Tribunal affirms the decision not to grant the applicants a Student (Temporary) (Class TU) visa.

    Mark Bishop

    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.