Liyana Patabandige (Migration)

[2019] AATA 3177

Liyana Patabandige (Migration) [2019] AATA 3177 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sathira Asiri Abeydeera Liyana Patabandige
Mrs Dilini Nayana Kumari Yapa Mudiyanselage

CASE NUMBER:  1732637

DIBP REFERENCE(S):  BCC2017/3472947

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 June 2019 at 12:48 pm (VIC time)

DATE OF WRITTEN RECORD:                9 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 09 July 2019 at 12:17pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– in Australia for over 12 years –immigration history –  using student visa to maintain ongoing residence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 15 December 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 20 June 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case number 1732637 in relation to an application for review brought by Mr Sathira Asiri Abeydeera Liyana Patabandige, the primary applicant, and Mrs Dileni Niyana Kumarai Yapa Mudiansalagi, the secondary applicant.

4. The applicants are citizens of Sri Lanka, they seek review of a decision made by a delegate of the Minister for Immigration and Border Protection or I should say the Department of Home Affairs, the Minister, on 15 December 2017 refusing to grant them student visas.

5. The applicants applied for their visas on 22 September 2017. The Migration Regulations classify this type of visa as student temporary class TU subclass 500 visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate via the operation of section 65 of Migration Act. If granted a student visa permits a non-Australian citizen to enter and remain in Australia to study fulltime on a temporary basis. The visa can also be granted to the primary applicant's family members, so that they too can remain here for the duration of the primary applicant's studies.

6. In this case there are two applicants.  It is the primary applicant Mr Liyana Patabandige who must meet the primary criteria set out in the Regulations relating to the grant of a student visa. The secondary applicant claims to be a member of the primary applicant's family unit, specifically his wife. A secondary must meet the secondary criteria under the Regulations.  The grant of a student visa to a secondary applicant is also contingent on the primary applicant meeting the primary criteria. This means that if the primary applicant fails to meet one or more of the primary criteria all connected applications brought by secondary applicants must necessarily fail.

7. The student visas were refused in this case because the delegate found that the primary applicant did not satisfy requirements of clause 500.212 of schedule 2 of the Regulations. The delegate was not satisfied that he was a genuine applicant for entry and stay as a student. The delegate's reasons are set out in a decision record. A copy of this record was provided to the tribunal by the applicants when the review application was lodged on 22 December 2017.

8. The primary applicant appeared before the tribunal on 20 June 2019 by telephone link, to give evidence and present arguments. The secondary applicant did not participate in the hearing. The tribunal hearing was conducted with the assistance of an interpreter in the Singhalese and English languages although the tribunal notes that at no stage did the primary applicant draw upon the assistance of the interpreter because he was very capable of communicating with the tribunal member in English.

9. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 of the Regulations. The primary criteria in clauses 500.211 to 500.218 must be satisfied by the main applicant. Whether an applicant satisfies the criteria is to be determined at the time the tribunal's decision is made.

10. In this case is the applicant advanced his student visa application before the tribunal on the basis that he wishes to study for an Advanced Diploma of Leadership and Management at Australia Learning, Training and Education Centre.  In support of this proposal he produced to the tribunal a confirmation of enrolment document known as a COE generated by the Department of Education and Training's Provider Registration and International Student Management System known as the PRISMS database. That COE bears reference number A8FD8B88. The COE was created on 1 May 2019 indicating the date on which the applicant enrolled in this course.

11. He states, and the tribunal accepts, that he has already started this course. The course date started on 13 May 2019 and is due to finish on 10 May 2020. The total cost of the course is $6,000. On the basis of this evidence the tribunal is satisfied that the applicant is currently enrolled in at least one registered course of study. The criteria contained in clause 500.211 of Schedule 2 of the Regulations are therefore met.

12. However, the critical issue in this case is whether the applicant satisfies the primary criteria contained in clause 500.212. That clause states that a student visa application to be successful the applicant must be a genuine applicant for entry and stay as a student in Australia. While not defined in the Regulations the word ‘genuine’ maybe taken to mean authentic, real or true according to its ordinary and natural meaning.

13. The Regulations also 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. Secondly, a genuine applicant is one who intends to comply with any conditions to which the visa maybe subject. There are several conditions that attach to all student visas, the most important of which oblige the visa holder to be a good student.

14. The Regulations direct the tribunal to consider applicant's intentions as they are the time the tribunal makes its decision. The tribunal must consider an applicant's declared intentions as well as other more objective evidence that may either support or cast doubt on their claims.  The Regulations state that consideration must be given to the applicant's objective circumstances, their immigration history, and their record of complying with conditions of any previous visas issued.

15. The tribunal must also have regard to direction number 69 that was issued by the Minister on 1 July 2016. Direction 9 elaborates upon the regulatory criteria.  Specific considerations referred to in both the Regulations and direction 69 are not exhaustive. The tribunal may have regard to other matters that are relevant in determining whether an applicant is a genuine applicant for entry and stay as a student.

16. In the course of the hearing before the tribunal the applicant stated that his reasons for studying the Advanced Diploma of Leadership and Management is that he eventually plans to move back to Sri Lanka and that his qualifications to date only include a Bachelor of Accounting, which he says do not provide him with the necessary skills to get a job in management. He says that he was offered a job back in Sri Lanka but he thought that if he was to take up that job he would need to hone his skills that could be acquired from an Advanced Diploma of Leadership and Management.

17. The applicant stated that following completion of the proposed course, the Advanced Diploma of Leadership and management, which finishes in May of 2020 he intends to move back to Sri Lanka. On the face of his express statements he has declared an unqualified intention to remain in Australia temporarily as a student.  However, the applicant must demonstrate to the tribunal's satisfaction that he intends to comply with any conditions to which the visa may be subject.

18. Several conditions attach to all student visas. The most important conditions oblige the visa holder to remain enrolled in a registered course of study, make satisfactory course progress, attend classes, and in the event of a decision by the visa holder to change 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.

19. The best way to measure the credibility of the applicant's declared intentions in that respect is to look to his more recent past in terms of previous visas that may have been issued in Australia with similar purposes. That brings the tribunal to consider the applicant's immigration history, and there is some degree of history of the applicant in Australia.

20. The applicant was initially granted his first student visa being a TU 573 visa on 26 January 2007. He arrived five days after that visa grant on 31 January 2007. He undertook his English bridging course, which he successfully completed.  Then he proceeded to undertake a Diploma of Business Management at the Holmes Glen Institute. There were some issues in completing that although he did not complete it but then he moved onto a Diploma of Accounting at Holmes Glen, which he successfully completed.

21. He then moved onto undertake a Bachelor of Accounting at Swinburne University of Technology in 2011. He did not complete that.  He then enrolled in a Bachelor of Accounting at Central Queensland University in 2011. He did not complete that.  He then enrolled in a Bachelor of Accounting at Holmes College in 2013, which he did for two years, and there was success, he completed it successfully. So it seems after a long haul of studying in Australia he finally gained a recognisable graduate qualification from the Holmes College, a Bachelors Degree in Accounting.  He obtained that in June 2015.

22. He then appears to have been granted a graduate work stream visa, which he used to work.  Then he applied for another student visa and he enrolled in a Diploma of Leadership and Management and completed that in 2018 and since then he has not done anything.

23. So there is a somewhat chequered history with respect to the ability of the applicant to comply with conditions in terms of making satisfactory progress but the overwhelming result of successfully achieving the Bachelor of Accounting course from Holmes College demonstrates that he is capable of enrolling and successfully completing courses when he does actually put his mind to it.

24. Certainly, the course he proposes today being a lower level Advanced Diploma course is something that given he has completed a Bachelors course he is quite capable of achieving.  On that basis if the visa were to be granted the tribunal is of the view that he probably would comply with the conditions, which oblige him to be a good student, and he probably would successfully complete the course, if he had to.

25. But that is not the end of the inquiry. Although the tribunal is satisfied that he would probably comply with the conditions attaching to the visa and therefore he meets the criteria under clause 500.212(b), the biggest concern for the tribunal today is whether he meets the criteria contained in clause 500.212(a).

26. Clause 500.212(a) requires that the applicant must demonstrate to the tribunal's satisfaction that he has a genuine intention to remain here temporarily. The problem with the tribunal reaching a point on this issue in the applicant's favour is that he has now been here for more than 12 years. The applicant is 34 years old.  He has effectively remained a permanent resident in Australia for the last 12 years.  That represents more than one third of his entire life. It represents the most part of his adult life. He enjoys Australia. If he did not enjoy Australia he would have returned to Sri Lanka by now.

27. The real concern in relation to this is that he has remained here as the result of seven temporary visas being successively granted to him. He is now still here on a bridging visa, which inherently is a temporary visa. But in relation to each application for a temporary visa that was made to him and granted, these previous seven successful visa applications, on each occasion the applicant declared an intention to remain in Australia temporarily and then implicitly declaring an intention to depart Australia upon the expiry of the temporary visa.  The applicant admitted so much in evidence at the tribunal today.

28. So he has done that seven times in a row and after the expiry of each temporary visa the applicant has obviously changed his mind and applied for another visa demonstrating that his intention has changed. The applicant now comes before the tribunal today declaring the same intention, that he wants this temporary student visa, the eighth temporary visa, on the basis that he declares an intention to leave Australia after its expiry.

29. In light of the history of his successive seven declarations of intent and none of those manifesting into an actual departure from Australia, there is very little credibility to be found in his declaration of such an intent today. In short, the tribunal does not believe him.  Therefore the tribunal does not accept that he has a genuine intention to depart Australia after the expiry of this visa on the basis of his immigration history alone.

30. However, in accordance with direction number 69 and the Regulations I have given consideration to other matters to consider the possibility that that particular concern and that factor may be alleviated by looking at other considerations. Certainly the applicant does not have any adverse immigration history in terms of complying with the conditions of visas that have been issued to him in Australia nor is there any evidence before the tribunal concerning his immigration history in other countries which might display some problems which raise concern. In that respect his immigration history in that regard at least to that extent operates in his favour.

31. However, the tribunal has also given consideration to the value of the proposed course that he says he needs to study in order to hone his management skills and get a job when he returns to Sri Lanka. The tribunal sees very little value in this proposed Advanced Diploma of Leadership and Management course.  He already has a high qualification being a Bachelor of Accounting. He already has a Diploma of Leadership and Management. The tribunal is of the view that his particular course will add very little value to his job prospects.

32. If indeed, as he asserts, it was going to add significant value to his job prospects, the tribunal is of the view that he would have taken up the opportunity he had while awaiting the hearing before the tribunal and enrolled in a course of that nature much earlier. He chose not to do so and by his own admission in evidence he simply worked since the time his student visa was refused to the hearing today.  In these circumstances the value of the course does not assist the applicant's claims today.

33. The tribunal has also given consideration to the applicant's circumstances in his home country. The tribunal has heard that the applicant is an only child whose father passed away some years ago and that his mother remains in Sri Lanka.  She is depressed as a result of her husband's relatively recent death. The applicant stated that he speaks to her on a daily basis. The applicant stated that he is concerned for her welfare and so that operates as an incentive for him to return. However, if it was such a significant incentive the tribunal is of the view that he would have returned there by now to take up that responsibility, however he has chosen not to do so. In those circumstances the tribunal does not consider that he has significant ties in Sri Lanka that operate to entice him back to his home country.

34. The tribunal has also taken into account that he has minimal assets in Sri Lanka. He referred to having two houses and one car. The tribunal has also taken into account that he has only really his mother there. He has referred to the fact that his extended family live in other parts of Sri Lanka.

35. In terms of his circumstances in Australia his wife is here as a secondary applicant, she came here in August 2007. The applicant stated that he has a job in customer services. The tribunal also notes that the economic disparity between Australia and Sri Lanka is well noted by the United Nations Human Development Index. Australia is ranked third, Sri Lanka is ranked significantly lower and by any objective measure most people would enjoy the economic benefits that Australia's economic life provides and so there is an incentive for him to remain here.

36. The applicant also does not appear to have any factors such as military service or civil unrest or political unrest in Sri Lanka that are operating to deter him, so those things certainly operate in his favour.

37. But in all the circumstances the tribunal is of the view that the applicant is attempting to use the student visa program to circumvent its intentions and maintain ongoing residence. He has been here for 12 years. By any objective measure he has attempted to remain here on a permanent basis and again would be seeking to do so today.

38. In all of these circumstances the tribunal is not satisfied that the primary applicant genuinely intends to stay temporarily in Australia as a student.

39. In case number 1732637 the tribunal affirms the decision not to grant the applicants student temporary class TU subclass 500 visas.

    DECISION

40. The Tribunal affirms the decisions under review.

    Dr Jason Harkess
    Member