Magura Gamaethige (Migration)

[2019] AATA 5216

Magura Gamaethige (Migration) [2019] AATA 5216 (22 August 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Kumundini Surangika Madhubhashini

Magura Gamaethige

Mr Gayan Suranga Paniyan Duwage Miss Lithumi Minaya Paniyan Duwage

CASE NUMBER:  1804457

DIBP REFERENCE(S):  BCC2017/4623835

MEMBER:  Robert Cumming

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 August 2019 at 3:47 pm (QLD time)

DATE OF WRITTEN RECORD:                3 September 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision not to grant the

applicants Student (Temporary) (Class TU) visas.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time in Australia – academic progress – study gaps – gave birth to two children – incentives to return to Sri Lanka – family ties in Australia – applications for employment in Australia – job offer in Sri Lanka – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 7 February 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under s.65 of the Migration Act 1958 (the Act).

2. At the hearing on 22 August 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. The applicants applied for the visa on 5 December 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.

4. 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 the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

5. The applicant appeared before the Tribunal on 22 August 2019 to give evidence and present arguments. The adult secondary applicant also attended the hearing but did not give evidence or present arguments. The child secondary applicant, being six years of age, was not involved in the hearing of the application.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

7. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 whether the applicant is a genuine temporary entrant.

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

10. 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

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(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?

1. 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 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.

2. 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.

3. According to the information supplied to the Department with the visa application and the information supplied to the Tribunal by the applicant in the completed Request for Student Visa Information Form (Information form) received by the Tribunal on 26 June 2019, the statement of the applicant which also accompanied that Information form, and also the migration agent’s submissions received by the Tribunal on 20 August 2019, and oral evidence at hearing (noting that all matters on the Tribunal and Departmental files were had regard to, not just the items specifically mentioned) as a result of this consideration of which, the circumstances concerning the applicant may be summarised as follows:-

   (a)The applicant is a 38-year-old citizen of Sri Lanka who first arrived in Australia on 22 February 2007. The secondary applicant is her 41-year-old husband and the child secondary applicant is her six-year-old daughter born in Australia on 6 June 2013. It is to be noted that the applicant also has a son Methuka Mindinu Paniyan Duwage born in October 2018. As the visa application was made prior to Methuka’s birth he is not included as an applicant in this review.

   (b)The applicant has links in her home country in the form of her parents who are now retired. Her father had heart problems previously but her mother and he are now in generally reasonable health. They have been very supportive of the applicant. The applicant has a younger brother but he too is studying IT in Australia.

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(c)The applicant says her family are middle class and would have the wherewithal to support her financially should she have to return to her home country although she would seek to find remunerative employment to assist their living circumstances. It is noted that the applicant keeps in regular contact with her parents.

(d)The applicant indicated in evidence that there are no requirements for military service commitments which she would have to fulfil if she were to return to her home country.

(e)The applicant also advised there is no political or civil unrest in the area of Sri Lanka in which her family live.

(f)The applicant indicated she does have a circle of friends here in Australia both from studies and others which she socialises with on a monthly basis. The applicant is supporting herself with the cost of study in Australia largely by reason of the support of her parents. She has had part-time work as a cleaner and her husband does have full-time employment as a team leader in a footwear manufacturing business. Additionally, her brother is in Australia as are two permanent resident uncles of hers whom the applicant says she does not have much contact with although one has provided financial support to her.

(g)When the applicant came to Australia, according to her evidence, it was for the purpose of engineering studies. There has been progress in this regard but that has been somewhat slow. The applicant acknowledges this. She did have some difficulties with passing subjects early on in her course and then she did have the birth of the child secondary applicant to deal with during 2013 towards the latter part of her studies, which delayed her studies, meaning her four-year course took some seven and a half years of full-time study to complete.

(h)Thereafter there was a gap in studies until effectively July this year, however there were attempts during that time to obtain employment, which were unsuccessful. And there were attempts to then undertake project management studies, which the applicant gained from her internship in her engineering professional year at the University of Queensland and assessed as being useful to her future career. She did make some attempts to study, however difficulties with the education institution and particularly also having given birth to another child during 2018 meant those studies did not continue and the enrolment was cancelled at that institution and not able to be continued as they did not offer that course anymore.

1. It should be pointed out that in relation to the studies the applicant has undertaken, in addition to the information she provided in the Information form, the applicant was provided the printout statement from the Provider Registration and International Student Management System (PRISMS). In relation to that printout, the applicant was given that printout under the provisions of s.359AA of the Act and time to consider the information contained in the printout. That was also the case in relation to the printout from the departmental movement records. At the conclusion of the time the applicant required to consider the material the applicant indicated she did not need any additional time or seek an adjournment in order to deal with the information provided. Apart from explaining a number of the entries with respect to courses, particularly non-completion of courses, the applicant did not challenge the accuracy of the information in the printout. As noted the applicant largely had provided information to the same effect in her Information form.

(j)Based on a consideration of material as to courses, it can be noted that the applicant has in her time since arriving in Australia in 2007 completed two courses or three, if you include the Mixed English and Academic Program studies that she undertook

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concurrently during her Diploma of Engineering studies. She completed the Mixed English and Academic Program in the period 15 January 2007 to 9 June 2007 and her Diploma of Engineering in the period 17 July 2007 to 30 June 2008. In fact, her Diploma of Engineering testamur was granted to her on 31 July 2008.

(k)The applicant then took time to complete her Bachelor of Engineering degree having first enrolled on 22 July 2008. She duly completed that with her testamur granted to her on 18 December 2015, some seven and a half years after commencement of the four-year course. As previously noted, between the conclusion of that course in December 2015 and July 2019, although having attempted some studies, no studies were completed during that time by the applicant.

(l)The applicant gave evidence as to the usefulness of her studies, particularly her project management studies to her should she return to Sri Lanka. In particular she noted that there are quite a number of civil engineers in Sri Lanka but as to project management qualified engineers there are not many of them. When questioned why she could not undertake those studies in Sri Lanka she really did not indicate she had undertaken much research in that regard but indicated that the quality of the Australian qualifications would stand her in much better stead having them held in high regard in her home country.

(m)In that regard, the applicant says that her course is consistent with her current level of education and will assist her in obtaining improved employment prospects in her home country. The course, because it covers project management, which together with her completed engineering studies, will be relevant for her proposed future employment in her home country where she has obtained a job offer, which will be discussed further in these reasons.

(n)As to the remuneration levels these were expressed a project engineer, the applicant informed the Tribunal, would earn approximately 120,000 Sri Lankan rupees a month, which is approximately $1,000 a month in Australian currency as compared with approximately 65,000 to 75,000 Sri Lankan rupees per month for a civil engineer, which can be seen to be significantly below the project engineering offerings. This, of course, must be put in context with Australian earnings where the applicant indicated that this would be significantly lower. In fact, a civil engineer would earn approximately $65,000 per annum in Australia, which equates to significantly more than the $500 a month that they would earn in Sri Lanka.

(o)In relation to that, it should be pointed out that her migration agent did point to the difference in the costs of living between the two countries as evening out that particular aspect.

(p)Based on the information supplied by the applicant to the Tribunal in her Information form and confirmed by her in the movement records, since her initial arrival in Australia on 22 February 2007 she has departed on four occasions. Firstly, on 8 July 2011 until 27 July 2011 for some 21 days during which she was married. And then she departed again in the middle of November 2014 on the 14th and was absent for some 47 days arriving back in Australia on 1 January 2015. Then she had 33 days away between 8 April 2015 and 11 May 2015. And finally, 16 days from 25 February 2017 to 13 March 2017.

(q)The applicant gave sufficient evidence of her knowledge of living in Australia and her associated education provider.

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(r)As to visas, the applicant in her Information form and as confirmed on the movement records has had a number of visas issued in Australia totalling some five visas. The applicant indicated that in respect of all the previous visas she has had in Australia none of these have been cancelled or have been refused.

(s)The applicant indicated she had not travelled to any countries other than her home country and Australia.

(t)The applicant did not suggest there were or give evidence concerning any other matters which may relate to her genuine temporary entrant status in Australia.

1. During the hearing, the Tribunal put to the applicant possible concerns it might have in respect to several issues.

2. Firstly, and this was discussed with her on several occasions, was the length of time she had been in Australia. If the applicant continues to the end of her proposed course it will be some 13 and a half years during which she would have only completed three substantive qualifications, namely the Project Management qualifications (a 12-month course), a four-year Engineering degree, and a one-year Diploma of Engineering. There are also the English language studies that she did complete concurrently with her Diploma of Engineering studies.

3. The applicant acknowledged this but said it should be accepted now that she does intend to return to Sri Lanka because she wishes to repay the support her family, particularly her father, has given over many years, which has allowed them to remain in Australia and eventually she will need to look after them.

4. It was put to the applicant that she may be able to get engineering employment already with her existing qualifications, however she indicated that this would be enhanced by the provision of her project management studies.

5. As to whether the applicant intended to seek more employment in Australia as she had previously done the applicant denied this in her evidence.

6. Having had regard to the applicant’s evidence and submissions and her responses to the possible concerns raised by the Tribunal, as summarised above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:-

   (a)The Tribunal can accept the applicant’s reasons for studying engineering and project management in Australia but due to the length of time she has taken to complete this, the Tribunal is not satisfied that her rate of progress is consistent with that of a genuine student and are for the purposes of maintaining ongoing residence in Australia.

   (b)The applicant has ties in Sri Lanka, her parents, but her conduct in remaining in Australia with limited visits in some 12 and a half years at hearing and her ability to remain in contact with her family on a regular basis and the fact that she has the support to remain in Australia both from her family and with her husband working full time leads the Tribunal to conclude that there is not a significant incentive for the applicant to return to her home country.

   (c)As to economic circumstances in the applicant’s home country, the Tribunal notes there is family support for her return in circumstances where she would wish to also seek employment to cover for living expenses, which leads the Tribunal to conclude that economic reasons would not present a significant incentive for her not to return to her home country.

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(d)There are no requirements for military service commitments affecting the applicant, which would present as a significant incentive for her not to return to her home country.

(e)There are no circumstances of political and civil unrest in the area in which the applicant’s family are located in her home country which would present a significant incentive for her not to return to her home country.

(f)In considering the circumstances of the applicant in her home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle class family but otherwise does not make any findings in that regard, which are other than entirely neutral towards the applicant.

(g)The applicant has ties in Australia, namely her husband, her two children, her brother, two uncles, and the wherewithal with the funding and support from her family to remain in Australia, which the Tribunal considers presents a strong incentive for her to remain in Australia.

(h)While the Tribunal can accept the applicant had an overwhelming desire to study engineering, which she eventually achieved, the long gaps in her study and the recent return to study in circumstances where she had made application for employment and has been unsuccessful does lead the Tribunal to consider that the actions of the applicant, considering all matters, including her explanations as to reasons why a 13 and a half year residence in Australia should not be regarded as not being temporary, the Tribunal considers overall, balancing those explanations, that the conduct of the applicant amounts to use of the student visa program to circumvent the intentions of the migration program.

1. For similar reasons, the Tribunal considers the student visa is being used to maintain ongoing residence in Australia.

(j)As the secondary applicant, that is the adult secondary applicant, and the applicant are not Australian citizens and cannot potentially gain benefit from the outcome of a potentially successful student visa application and they have been married for some eight years, the Tribunal does not consider that the relationship between the applicant and the adult secondary applicant amounts to a relationship of concern, which has been contrived for a successful student visa outcome.

(k)The applicant has demonstrated adequate knowledge of living in Australia and her intended course of study and the associated education provider.

(l)The Tribunal does accept that the project management studies that the applicant is undertaking can have relevance for her future employment. For the other reasons stated, little weight is placed on this and the Tribunal finds that the studies are motivated more for reasons other than studying in Australia on a temporary basis.

(m)Particular mention should be made of the job offer the applicant provided as evidence of her intentions to return to Sri Lanka. This was obtained for her through the auspices of her father although the applicant denies her father and the firm have any connections. It is stated in the job offer that the applicant was successful for a job, which the firm will be prepared to delay until she completes her studies. While the applicant suggested that the project management studies would be of assistance to her given that she has not worked in this field and there is the delay in commencement, the Tribunal finds this is somewhat an inherently unlikely situation for

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a firm seeking employees and places little weight on the job offer presented by Jayavi Holdings (Pvt) Limited.

(n)As to remuneration, the applicant concedes that her remuneration would be better in Australia where she has attempted to apply for jobs, which were unsuccessful, and although the applicant has indicated she has no further intentions of seeking employment, the Tribunal finds that the applicant’s situation remaining in Australia would be more conducive to her, and for this reason the Tribunal places little weight on her assurances of return to Sri Lanka.

(o)At the hearing, the applicant had been in Australia for approximately 12 and a half years during which time she had returned to her home country on four occasions for a total of approximately 17 weeks. Were the applicant to remain at the conclusion of her proposed studies, the applicant would have been in Australia for almost 13 and a half years.

(p)As to previous visa applications for the applicant, but for the visa application under review in this application, there is no evidence in Australia of any of those visas having been refused.

(q)Similarly there is no evidence before the Tribunal that any of the applicant’s previous Australian visas have been cancelled.

(r)As there is no evidence that the applicant has travelled to countries other than her home country and Australia, it is unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of another country.

(s)As noted, were the applicant to remain in Australia to the conclusion of her proposed studies, she will have been in Australia for almost 13 and a half years. This will be in circumstances where the applicant has made only slow progress in those studies. The Tribunal does accept that during that time the applicant gave birth to two children and both of those births resulted from difficult pregnancies but these situations were not of significant duration. And particularly based on the knowledge gained from the first pregnancy the after effects of the second pregnancy had been minimised. This does lead the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia.

(t)As to the child secondary applicant, given her age, the Tribunal considers that the findings in respect of that applicant are governed by the intentions of the applicant as her parent and about which the Tribunal has made findings.

(u)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

1. Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant’s case than those factors which are supportive of her case. Those matters weigh more heavily in the view of the Tribunal to establish there is not a significant incentive for the applicant to return to her home country and the student visa is being used to maintain ongoing residence in Australia than do the other matters, which are either neutral to or in the applicant’s favour.

2. Having had regard to all matters, including the Direction No.69 requirements to which regard is required, 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).

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Conclusion on cl.500.212

1. 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.

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

   Secondary applicants

3. The two secondary applicants’ visa applications are dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires the secondary applicants, namely the applicant’s husband and the applicant’s daughter, to be members of the family unit of a person who satisfies, or has satisfied, the primary criteria for a student visa.

4. It follows that because the applicant has been found not to meet the criteria for the grant of a student visa, the secondary applicants do not meet the secondary criteria for the grant of Subclass 500 (Student) visas and the decision under review must be affirmed.

   DECISION

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

   Robert Cumming
   Member

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