Marasinghe Arachchige (Migration)
[2022] AATA 3705
•16 August 2022
Marasinghe Arachchige (Migration) [2022] AATA 3705 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Bhanuka Pahan Chandrarathna Marasinghe Arachchige
REPRESENTATIVE: Mr James Hammond
CASE NUMBER: 2107775
HOME AFFAIRS REFERENCE(S): BCC2019/4175072
MEMBER:Peter Booth
DATE:16 August 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 16 August 2022 at 8:52am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine temporary entrant – study history – completed only English and tertiary preparation courses – enrolled in approximately 20 vocational courses, some more than once, and completed none – changes of subject area – car accidents and mental health – one course completed after visa refused, with two further enrolments – incentives to remain or return – steady employment and de facto partner in Australia – vague explanations of study history and future work plans – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 22 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was not a genuine temporary entrant.
Following a review of the applicant’s case, the Tribunal, differently constituted, affirmed the delegate’s decision. The applicant then sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia (‘the FCCA’). The FCCA, after hearing the applicant’s argument, determined that the Tribunal had fallen into jurisdictional error and remitted the applicant’s review application to the Tribunal for reconsideration.
The primary decision of the delegate now comes before the Tribunal to be reviewed again, in circumstances where a court has set aside the original Tribunal’s determination and remitted the matter for reconsideration.
The applicant appeared before the Tribunal on 24 May 2022 to give evidence and present arguments. The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
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?
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.
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.
The applicant gave evidence at the hearing, the substance of which was as follows.
The applicant had read the delegate’s decision dated 27 September 2019 refusing his application for a student visa.
The applicant understood that the issue for determination was whether he was a genuine temporary entrant.
When asked to state the details of his current enrolments including the name of the course, the date started and the date it is expected to be completed the applicant said “Certificate III Light Vehicle Mechanical Technology supposed to finish 1 June this year but finished all coursework on 18 May 2022, propose to study Certificate IV Automotive Mechanical Diagnosis supposed to start 13 June this year, upon completing Diploma Automotive Technology start 5 December 2022, end date 21 May 2023”. The Tribunal enquired whether the applicant had a certificate of completion in respect of the Certificate III course. He said “no, waiting for this”.
Prior to the hearing the applicant had provided several confirmations of enrolment in respect of the following courses. A Certificate III in Light Vehicle Mechanical Technology due to commence on 15 February 2021 and be completed on 10 April 2022, a Certificate IV in Automotive Mechanical Diagnosis scheduled to commence on 16 May 2022 and be completed on 8 January 2023 and a Diploma of Automotive Maintenance to commence on 20 February 2023 and be completed on 18 February 2024. Notwithstanding the discrepancies in the dates provided by the applicant the Tribunal accepts that he is enrolled in these courses.
The applicant had also provided information on 28 May 2020 to the Tribunal in the form of a response to a request to do so pursuant to s 359(2) of the Act. In summary, the information provided by the applicant was as follows.
Prior to his arrival in Australia, the applicant completed a Diploma in ICT and Computing between September 2014 and February 2015. He did not provide information regarding his work experience before arriving in Australia.
The applicant arrived in Australia on 16 October 2015 and since that time has returned to Sri Lanka on one occasion for one week for a holiday. Accordingly, the last occasion on which the applicant returned to his home country was December 2017 for one week. The applicant also travelled to England in June 2019 for one week for a “holiday”.
The application for the student visa in question was made in August 2019.
The applicant stated his visa history in Australia to be as follows: he held a “student visa” between October 2015 and August 2019.
The applicant stated his employment history to be as follows:
·he was employed as an “Apartment cleaning attendant” between December 2015 and February 2016 from which he derived an annual salary of $6,144.
·he was employed as a “Cleaning attendant” between March 2016 and August 2016 from which he derived an annual salary of $18,600.
·he was employed as a “Delivery Driver” between June 2016 and September 2017 from which he derived an annual salary of $13,200.
·he was employed as an “Apprentice Bricklayer” between October 2017 and November 2018 from which he derived an annual salary of $23,916.
·he was employed as a “Pizza maker” between January 2019 and September 2019 from which he derived an annual salary of $19,200.
·he is currently employed as a “Food Deliverer” since September 2019 from which he derives an annual salary of $21,000.
The applicant stated that his parents and brother reside in Sri Lanka and his de facto partner resides in Australia.
The applicant did not provide information about ownership of assets in Sri Lanka.
As to his future employment plans the applicant stated:
I HOPE TO GO BACK TO SRI LANKA UPON THE COMPLETION OF MY STUDIES TO START MY CAREER IN POSITIONS AS A CONTRAC T ADMINISTRATOR, PROJEC T MANAGER, BUILDING CONSULTANTS ETC INITIALLY TO GAIN WORK EXPERIENCE. AFTER WORKING FOR 2-3 YEARS IN SRI LANKA, ALONG WITH THE GAINED WORK EXPERIENCE, I WILL BE ABLE TO IMPROVE MY CAREER PROSPECTS IN THIRD PARTY COUNTRIES LIKE SINGAPORE, UAE IN HIGHER POSITIONS SUCH AS PROJECT MANAGER/ SENIOR PROJECT MANAGER TO EAR BETTER SALARY AND IMPROVE CAREER PROSPECTS.
As to his expected future remuneration the applicant stated:
WITH AN INTERNATIONALLY RECOGNIZED DEGREE QUALIFICATION, I WILL BE ABLE TO EASILY EARN AROUND LKR 100,000 T 150,000 PER MONTH WITHIN SRI LANKA IN THE ABOVE MENTIONED POSITIONS RELATED TO THE CONSTRUCTION SECTOR. l LATER IF I MOVE INTO COUNTRIES LIKE SINGAPORE AND UAE, I WOULD DEFINITELY IMPROVE MY SALARY AS THOSE COUNTRIES HAVE BETTER REMUNERATION FOR PROFESSIONALS SUCH AS PROJECT MANAGERS WHICH ARE AROUND AUD 90,000 PER YEAR.
The Tribunal proceeded to ask the applicant some questions arising from this information. The substance of the questions and his responses, in summary, were as follows.
The Tribunal observed the applicant had only returned to Sri Lanka on one occasion in 2017. He said “[I] recently travel[led] 5 April to 18 April this year”.
The Tribunal turned to the applicant’s study history as reflected by the Provider Registration and International Student Management System (PRISMS) accessed on 19 May 2022. A copy of the PRISMS search was provided to the applicant prior to the hearing on 19 May 2022. He was asked whether he had received that document. He replied “yes”. When asked whether he had read it he said “yes”.
The Tribunal informed the applicant that it is required to give him clear particulars of any information that it would consider to be the reason or a part of the reason for affirming the decision that is under review and would ensure, as far as is reasonably practicable, that he understood why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review.
The Tribunal stated that it accessed the applicant’s PRISMS records for the purpose of ascertaining whether the applicant was enrolled in a registered course of study, as required by cl 500.211(a), because there was insufficient evidence currently before the Tribunal about this. In summary, the PRISMS search showed that the applicant has an extremely poor study history, as follows.
First, the applicant has only completed two courses since arriving in Australia. These are a Certificate IV in Tertiary Preparation Program which was completed on 7 October 2016 and an ELICOS – General English non AQF award course which was completed on 21 December 2018.
The Tribunal notes that the applicant claimed to have completed a Certificate III in Light Vehicle Mechanical Technology but has not yet been issued a certificate of completion.
Secondly, the applicant has enrolled in approximately 20 courses which he has not completed.
Thirdly, the applicant has enrolled in the same courses on multiple occasions as follows:
·A Certificate IV in Tertiary Preparation Program on three occasions – two of which were after the applicant had successfully completed the course on 7 October 2016.
·A Diploma of Computing on three occasions and did not complete any of them.
·A Bachelor of Information Technology on two occasions and did not complete either of them.
·A Diploma of Building and Construction (Building) on three occasions and did not complete any of them.
·A Bachelor of Construction Management and Economics on two occasions and did not complete either of them.
·A Certificate III in Light Vehicle Mechanical Technology on two occasions – one of which he claims to have now completed.
·A Diploma of Automotive Management on two occasions.
Lastly, after completing a tertiary program, the applicant has changed the direction of his study from computing and information technology to building and construction, and now to automotive courses.
The Tribunal informed the applicant that these matters may suggest that he is not a genuine temporary entrant or not a genuine student but stressed that it has not come to a view about this. The Tribunal invited the applicant to comment on or respond to the information and also informed him that he may seek additional time before doing so.
The applicant responded:
I will proceed now. First enrolling certificate four in Tertiary preparation in 2015, I had package COE, followed diploma computing then bachelor computing, academic progress not good, I had reason, I contacted Deakin three times, I have some psychological issues, I did not speak to counsellors because of cultural issue, I did not talk about that with them, during first trimester after arrival my mother had clinical condition, it affected me, had series of car accidents, for during initial period, effected because my father was one pain, I had some issues on going, I moved here after completing basic IT in Sri Lanka and English, but background did not help me to adapt to Australian education system, I was struggling, then because of poor academic progress, administration decided to exclude me, had mental issues, and mother ill compassionate issues, I decided to appear, studies were important to me, I appeal against decision, it was successful, they let me stay, but was enrolled in certificate four in TPP, then it was not any more, I had package and then diploma and bachelor degree, they offered me a foundation program, I enrolled, all COE were to be for same program, they are multiple entries, that is due to appeal process, I will continue with course, those compassionate reasons continue, I see psychologist, I saw Dr Anne, she discovered psychological issues, she said I was fit, I enrolled.
The Tribunal asked whether the applicant was saying that “Dr Ann” told him that he was fit to enrol in a course of study. He said “yes”. He was asked when this occurred. He replied “January 2019”. The applicant was asked whether he had any opinion evidence as to the cultural issues which had prevented him from describing his alleged mental health issues. He said “after Dr Ann”. At that point the applicant’s representative referred the Tribunal to a letter dated 29 May 2020, appearing at page 77, of the bundle of documents which he had provided to the Tribunal. In particular the Tribunal’s attention was directed to the heading “cultural obstacle”.
The applicant continued with his narrative “after that I enrolled in FP and was not progressing to, I moved to Dr William and confide in her regular manner, I was not successful, I decide to change course provider in different area of study and construction”. The Tribunal asked the applicant why he decided to change the direction of his study. He said “in Sri Lanka I did basic level of study, different study here I was standing with academic progress and psychological issues, I did not want to disappoint study, in IT related to research work, I identified I could do well in practical aspect of studies, I like practical aspect of things, I enrolled in certificate three, I found my passion in there”. He was asked whether he was referring to the Certificate III in Bricklaying. He said “yes”. The Tribunal observed that at that time he was working as an apprentice bricklayer and asked when that occurred. He said “apprentice bricklayer, maybe December”. The Tribunal observed that in the information he had provided to the Tribunal he had stated “apprentice bricklayer” in October 2017 and observed that he had commenced the Certificate III in Bricklaying in January 2018. The applicant agreed. He was asked whether it was a coincidence that he had been employed as an apprentice in bricklaying and then started the Certificate III in Bricklaying approximately 3 months later. He said “no I wanted to start area of study, I also applied for auto technic at the same time, I got offer from auto technology, I decided to choose construction, I want reason to enrolled in certificate three bricklaying”. The Tribunal observed that he did not complete the Certificate III in Bricklaying and asked when he stopped studying the course. He said “I did not stop, due to medical condition in November 2018 Dr recommended a transfer”. When the question was repeated he said “at that time”. The Tribunal observed that the medical conclusion was that he suffered from scoliosis and asked whether he had back problems previously. He said “before not diagnosed with back pain”. When invited to provide a direct response to the question he said “I did not have problem prior to this”.
The Tribunal observed that he then changed the direction of his study and returned to computing studies. He said “it was computing package, once finished would”. He was asked whether he enrolled in the Diploma of Computing on 5 March 2018. He said “they cancel all their B and C courses I did not change in diploma computing”.
The Tribunal asked whether, after he abandoned the Certificate III in Bricklaying, he had commenced a Diploma of Construction. He said “I had gap November until February following year, Institute offered me short ELICOS course in February 2019”. The Tribunal observed that he did not complete that course. He said “yes”. He was asked when he ceased studying that course. He said “end of 2020”. He was asked why he stopped studying that course. He said “as soon as in the first trimester I end up in car accident and [was] hospitalised”. He was asked when the car accident occurred. He said “May 2019”. He was asked how long he was hospitalised. He said “one night, with three stitches”. The applicant was asked whether the car accident was relevant to his study history. He said “relevant to that semester I deferred course”. He was asked when he deferred the course. He said “for that semester in 2 July”. He was asked why he deferred his studies. He said “due to car accident, I was mentally depressed, and I requested deferral”.
He was asked what happened to the abandoned course at the end of 2020. He said “my COEs were reissued, in July they let me know that Bachelor of Construction were in teach out mode, required me to choose a different course”. The applicant was asked what course he was offered at that time. He said “nothing related to construction studies, they offered bachelor of business administration”. He was asked how many units in the Diploma of Construction were successfully completed. He said “I attempted 14 units, I did not successfully complete any in that course”.
The Tribunal asked the applicant whether he was indeed offered a place in a Master of Business Administration course. He said “yes but did not start”. He was asked why he did not transfer to another provider to complete the Diploma of Construction. He said “I lost my motivation at that time, I wanted to work as project manager, that lead me to change area from construction to information technology, also I had psychological conditions going on me, after consult a doctor in January 2021 I changed to automotive course”.
The applicant was asked when he decided he wanted to be employed as a project manager. He said “my end goal when I entered into Certificate III bricklaying, at that time and end”. He was asked why he did not enrol in a project management course at the time when the enrolment in the Diploma of Construction was not offered by the education provider. He said “I search for course in construction area, I did research”. The applicant was asked whether he was asserting that there was no project management course available at that time. He said “I could not find, and I had to complete diploma construction”. He was asked whether he was asserting that he would not have done a project management course at the time. He said “I did not want to change to project management and level”.
The Tribunal asked the applicant when he changed the direction of his studies to automotive studies. He said “March 2021”. He was asked to explain why he did this. He said “I had interest to start automotive business before is practical, I decide to start automotive studies”. He was asked why he did not complete the Diploma of Construction and then proceed to the Bachelor of Construction Management. He said “I could not find another course”. He was asked whether he was asserting that there was no other Bachelor of Construction available. He said “I could not find”.
The Tribunal proceeded to ask the applicant some questions about his statutory declaration dated 16 May 2022. He was referred to paragraph 10 of the document and the reference to numerous car accidents. He was asked whether he had any documents to support that assertion. He said “given previously”. The Tribunal invited the applicant’s representative to provide any documents subsequent to the hearing, there being none in the file of documents provided to the Tribunal. The applicant was asked how many accidents he had been involved in. He said “four in the first year”. He was asked whether they prevented him from studying and, if so, how. He said “not injuries, only one May 2020 in diploma of building and construction, other than that other reason create pressure for father to pay mental health issue”.
The applicant was asked when he had first seen a psychologist. He said “January 2017, Dr Ann”. He was asked what made him disclose psychological issues in January 2017. He said “because I could not keep it to me, so decided to get professional help”. The Tribunal observed that he had asserted there was a cultural impediment to disclosing such matters. The applicant agreed. The Tribunal said if that was the case, why breach the cultural impediment in January 2017. He said “I met her first time, I kept it to myself, I could not bear it any more, prior to that time I had not had any psychological tests before”. The Tribunal asked the applicant what brought matters to a head in January 2017 such that he disregarded the alleged cultural impediment. He said “I try to keep it to myself that couldn’t do any longer”.
The Tribunal asked the applicant to state how many times he had seen Dr Ann Locarnini, the counselling psychologist. He said “once”. The Tribunal observed that he had then seen Ms Rosemary Williams, another psychologist, and asked when he first visited her. He replied “Dr Ann say I can enrolled, I have some problems, I changed to Dr Williams 14 April 2017 onwards”. He was again asked to state how many times he had attended Ms Williams. He said “two or three times”. The Tribunal asked whether Ms Williams concluded that the applicant could return to study. He said “yes then I went to certificate III bricklaying”.
The Tribunal observed that in his statutory declaration, at paragraph 24, he returned to see Ms Williams on 4 February 2019. The applicant agreed. He was asked to state when he had seen her previously. He said “January 2018”. He was asked whether his state of mind was satisfactory, in terms of his mental health, between January 2018 and February 2019. He said “yes”. The applicant was asked why he returned to see Ms Williams on 4 February 2019. He said “my mental health issues arose again, after completing the English course”. When the question was repeated, he said “I was disappointed that I had quit certificate III bricklaying”.
The Tribunal asked the applicant whether he has taken prescription medication for mental health issues. He said “no”. He was asked whether he had ever been recommended to take such medication. He said “Dr Williams did not do so”.
The Tribunal observed that Ms Williams prepared a report dated 28 January 2018 and asked the applicant why the report was prepared. He said “I wanted to change course at Holmesglen they did not want to give me a release letter”.
The Tribunal observed that Ms Williams prepared another report dated 29 May 2020 and asked the applicant why this report was prepared. He said “to address all issues for my case on AAT”. He was asked whether he was enrolled in a course of study at the time the report was prepared. He said “enrolled in diploma of building and construction”. He was asked whether he had progressed with that course. He said “no I lost motivation”.
The applicant was asked whether, as at May 2020, he had passed any units in the building and construction course. He said “no”.
He was asked to confirm that Ms Williams had produced only two reports. He agreed.
The applicant was asked whether he had attended Ms Williams subsequent to 29 May 2020. He said “yes”. He was asked to state when he had seen her. He said “last time I saw was when I change course in January 2021”. The applicant was asked how many times he had attended Ms Williams between May 2020 and January 2021. He said “only in January 2021”.
He was asked whether he had studied between May 2020 and January 2021. He said “yes enrolled in diploma of building construction”. The Tribunal observed that he did not successfully complete one unit in that course. The applicant agreed. He was asked why he did not attend Ms Williams during the period from May 2020 until January 2021. He said “studies affected because of Covid, my mental health issues arose again, I was told about such matters in July”. He was asked why he did not consult Ms Williams in July. He said “due to Covid lockdown, only over the phone”. The Tribunal asked the applicant whether he was asserting that he could not have had a telephone consultation with Ms Williams between May 2020 and January 2021. He said “no”. The Tribunal informed the applicant that it found his response difficult to accept. He said “I understand”.
He was asked whether Ms Williams informed him, in January 2021, that he could study. He said “no, she said start from finish”.
The applicant was asked whether he had attended Ms Williams subsequent to January 2021. He said “no”.
The Tribunal asked the applicant why he considered that he can successfully complete his current courses. He said “since consulting with Ms Williams I started current course, I have completed this course, I found my passion in there, I acknowledge the study history is not good, this is my real passion, I have completed it, my passion for my study area”.
He was asked to state his career intentions when he returns to Sri Lanka. He said “return to Sri Lanka, where intend to work in this profession, I can work as a motor mechanic, I can find a job offer”.
He was asked whether he was currently employed. He said “no looking for a job in my area after get certificate”.
The Tribunal asked the applicant whether he intended to return to Sri Lanka after completing the Diploma of Automotive Maintenance. He said yes”.
The applicant declined an opportunity to add anything further to his application for review.
The Tribunal invited the applicant’s representative to make submissions and informed him that it had read the written submissions dated 17 May 2022. The applicant’s representative made brief submissions consistent with his written submissions.
Prior to the hearing the applicant provided a variety of documents to the Tribunal, including:
·Legal submissions from the applicant’s representative dated 17 May 2022
·The applicant’s statutory declaration dated 16 May 2022
·Previous confirmations of enrolment
·Correspondence regarding changes to enrolment at Menzies
·Current revised confirmation of enrolment at Menzies
·IELTS test report dated 28 July 2019
·Overseas Student Health Cover verification letter dated 9 August 2019
·Overseas Student Health Cover temporary membership card
·Academic progress letter from Menzies dated 29 March 2022
·Reference letter dated 5 April 2022
·Statement of attainment Menzies
·Bank statement for the period February 2022 to April 2022
·Statement from applicant’s father dated 16 May 2022
·Affidavit from applicant’s father dated 13 May 2022 and evidence of assets
·Evidence of mother’s medical condition
·Statutory declaration of Nimal Piyasiri dated 16 May 2022
·Statements of results and letter of proficiency from Holmesglen
·Psychological reports
·Holmesglen Medical Centre medical report
·Offer of employment dated 16 February 2022.
These documents were not referred to by the applicant at the hearing. Nonetheless they have been taken into account by the Tribunal. The Tribunal notes in particular the following.
In the applicant’s statutory declaration dated 16 May 2022, the applicant also claims to meet the genuine temporary entrant criterion by providing further details. These include his immigration history, his education history, his medical history, his motivation to study in Australia, the employment prospects and remuneration benefits of the Australian qualification, his ties to Sri Lanka, his adherence to visa conditions, and the political and economic conditions in Sri Lanka. The Tribunal notes that in the declaration the applicant stated that he completed a computing course in Sri Lanka between September 2014 and February 2015 (paragraph 7). The applicant was unable to satisfactorily complete the Certificate IV Tertiary Preparation Program in Australia because he could not understand the technical language. He also mentions his involvement in a car accident as contributing to his academic failure (paragraph 10). He stated that his enrolments in the Certificate IV Tertiary Preparation Program, Diploma of Computing and Bachelor of Information Technology were cancelled as a result. He then appealed this decision and the enrolments were reinstated. However, a change in course descriptions meant that he had to be enrolled in a foundation program. He did not sit the examinations for that subject although he did study it (paragraph 11).
The applicant states that he did consult administrative staff during this time but did not disclose his mental health issues (paragraph 12). The applicant then changed his course provider and enrolled in a Certificate III in Bricklaying, Diploma of Construction and a Bachelor of Construction Management. These courses would have been conducted between 29 January 2018 and 30 June 2022 (paragraph 13).
The applicant stated that he could not complete the Certificate III in Bricklaying due to a diagnosis of scoliosis and he transferred to a less physical course. He also moved to a general English course (paragraph 14). The applicant enrolled in a Diploma of Building on 4 February 2019 which he continued until 2020 when he had a car accident and “continued to experience mental health issues”. He also blames the COVID-19 pandemic and states that he deferred his then course. As a result, he changed direction of his course of study again and enrolled in a Certificate III in Light Vehicle Mechanical Technology (paragraph 15).
In paragraphs 16–25 of his statutory declaration the applicant discusses his mental health issues. These were said to arise from adjustment issues, being “homesick” and his mother’s medical condition. Details of the medical condition were not stated. He attended university counsellors but did not disclose his feelings in relation to mental illness. He had several car accidents which caused him to be stressed due to the financial impact on his father. The applicant does not state why his father had to pay for these events or the amounts which were paid. It was not until January 2017 that he consulted a psychologist and “told her about my true issues”. That psychologist told him that “I would be successful in my studies”. This was Dr Locarnini. He then attended Ms Williams, another psychologist, from 14 April 2017 and in June 2017 was diagnosed with a certain mental illness. In February 2019 the applicant consulted Ms Williams and was diagnosed with a different mental illness. He had not consulted Ms Williams since June 2017. Thereafter he consulted Ms Williams again on 20 January 2021. The applicant does not explain why he had not previously sought assistance for mental health issues despite access to university counsellors and psychologists.
The applicant states that he “always had a passion in automotive” and that being a construction manager “would not be ideal given my mother’s current condition” (paragraph 26). He does not explain why he did not enrol in automotive courses when he first arrived in Australia or why he has taken several changes in the direction of study to now to do so. Further he does not explain why, if a construction career would be inconvenient, he enrolled in such courses at all.
In paragraphs 27–29 of his statutory declaration the applicant extols the virtues of studying automotive courses. The courses had been extended due to the impact of the COVID-19 pandemic and he expects to complete the Diploma in May 2023. The applicant intends to seek employment as a motor mechanic when he returns to Sri Lanka and apparently has an offer of employment from a Sri Lankan firm (paragraph 36). The applicant’s mother, father and brother reside in Sri Lanka. He owns assets in Sri Lanka (paragraphs 38–40).
The applicant has provided his email correspondence with his education provider regarding the changes to the applicant’s automotive courses due to the education provider upgrading their automotive courses. It appears that as a result of recent restructuring of the courses the various enrolments were cancelled and new enrolments issued as follows: a Certificate III in Light Vehicle Mechanical Technology due to commence on 15 February 2021 and to be completed on 12 June 2022, a Certificate IV in Automotive Mechanical Diagnosis due to commence on 13 June 2022 and be completed on 27 November 2022 and a Diploma of Automotive Technology due to commence on 5 December 2022 and to be completed on 21 April 2023. These documents and emails appear to explain the multiple enrolments in a series of automotive courses.
The applicant has provided a statement from his father dated 16 May 2022. The letter includes an explanation as to why he and his wife supported the applicant’s choice to study in Australia and the applicant’s decision to change his course of study. The letter also attested to his son’s mental and physical health conditions, and his ties and incentives to return to Sri Lanka. The applicant has also provided a second statement from his father dated 13 May 2022. The letter states that he is sponsoring the applicant’s higher education study in Australia and provided supporting financial documents as evidence. The applicant’s father purports to describe his son’s mental state and mental health issues. The Tribunal has the benefit of the applicant’s declaration. The applicant’s father’s statement to that extent is given little weight. The applicant’s financial capacity is not an issue for the purposes of this application. However, the statement about his father’s capacity to pay tuition is noted.
The applicant provided handwritten medical notes from the doctors caring for the applicant’s mother as evidence of the decline of the applicant’s mother’s medical condition and her requiring knee surgery. These documents are barely legible and appear to be technical in nature. They are given no weight.
The applicant provided a statutory declaration from Nimal Piyasiri dated 16 May 2022. The letter, among other things, attests to the author being aware of the applicant’s medical conditions and the applicant’s ties and incentives to return to Sri Lanka. Among other things, the document contains some observations as to the applicant’s general demeanour at various times. The declarant is not a psychologist and to that extent the evidence is given no weight.
The applicant also provided a psychological report from Dr Ann Locarnini dated 27 January 2017. This report is based upon one visit by the applicant to Dr Locarnini on 9 January 2017. She states that the applicant was “likely to have suffered adjustment disorder in his first year in Australia, which then developed into major depression following the accidents and his mother’s illness”. She opines that the applicant “may have suffered from adjustment disorder”. This was brought on by moving to Australia and to a different culture. Several car accidents have also contributed to his psychological state. However, she concludes that the applicant “is in a very good position to succeed at his studies”.
The Tribunal accepts that as at 27 January 2017 the applicant was assessed by a counselling psychologist as being able to study. The Tribunal notes this assessment was based upon one consultation only. The psychologist concluded that he had some issues previously arising from moving to Australia from Sri Lanka and as a result of being involved in several car accidents. However, the Tribunal is not satisfied that circumstances such as car accidents or moving to Australia explain the applicant’s consistent extremely poor study history at this time or also the change in direction of his studies. Further these issues do not explain to the Tribunal’s satisfaction why the applicant did not return to Sri Lanka permanently if he was unable to adjust or cope with issues such as motor vehicle accidents.
The applicant has provided two psychological reports dated 28 January 2018 and 29 May 2020 from Ms Rosemary Williams, psychologist. The report dated 28 January 2018 states that the applicant consulted Ms Williams regularly from 14 April 2017. The report states that “he is unable to manage the academic standard and his unsatisfactory progress over almost 3 years has resulted in a severe psychological illness”. The report dated 29 May 2020 states that the applicant had consulted Ms Williams between 14 April 2017 and 31 July 2018. Among other things the report states that the applicant had been unable to give details of these circumstances previously due to a cultural impediment. She does not state how she is qualified to opine on this matter, including her qualifications and relevant experience. It seems to the Tribunal that this is in the nature of an anthropological opinion and is given little weight in the absence of the statement of qualifications by the author. Nonetheless, she concludes that “his psychological state is steady. He is well and able to resume his studies”.
The Tribunal observes that Ms Williams was consulted between 14 April 2017 and 29 May 2020. As at 29 May 2020 she concluded that the applicant was fit to study. As at 28 January 2018 it appears that her view was that the applicant was not able to study and may not have been so from 14 April 2017, although this is not clear. The Tribunal notes that this report does not explain why the applicant did not return to Sri Lanka permanently if he was unable to study for any reason, in particular, as a result of an inability to adjust to a different culture, the stress of several car accidents, or poor academic performance. Further the report does not explain the numerous changes in direction of the applicant’s study.
The applicant has also provided a letter of support from Dr Ronnie Gerendasi dated 22 November 2018 which states that he has examined the applicant and the results showed the applicant having mild scoliosis. The letter also confirmed that the doctor suggested to the applicant that he transfer from his bricklaying course to a less physically demanding one. The Tribunal observes that this opinion does not explain why the applicant had not returned to Sri Lanka permanently on any previous occasion, and why he had changed the direction of his studies, except as to the reason why he left the bricklaying course.
The applicant has provided an employment offer letter from Sanuthi Auto Engineers dated 16 February 2022 which states that the employment offer is, among other things, contingent upon the applicant obtaining a Certificate III in Light Vehicle Mechanical Technology in Australia. The Tribunal makes a number of observations in relation to this letter. First the Tribunal accepts that the applicant has such an offer of employment. However, there is no evidence that the applicant has accepted the offer. Secondly the applicant has now completed the Certificate III but has decided to stay in Australia to embark on further automotive studies. He has not explained to the Tribunal’s satisfaction why he has chosen to continue rather than accept the job offer and return to Sri Lanka immediately. Whilst it may be said that the applicant is intending to improve his qualifications there exists reasonable doubt as to whether he will successfully complete these other courses, having regard to his consistent poor study history.
The legal submissions from the applicant’s representative dated 17 May 2022 provided a helpful timeline as follows:
Date Event [Date] Born in Sri Lanka. 16 October 2015 85. First arrived in Australia on as the holder of a student (subclass 573) visa to study Certificate IV in Tertiary Preparation Program, Diploma of Computing and Bachelor of Information Technology. During this course, the Applicant experienced difficulty understanding and completing the subjects due to lack of knowledge and language barrier. In addition, the Applicant was also suffering from undiagnosed depression In or around October 2016 86. Deakin issued a show cause notice in relation to his poor academic performance, which he successfully appealed on 6 March 2017. However, upon successful appeal, the college no longer offered the course and instead offered an alternative Foundation Program which he accepted. Unfortunately, the Applicant was still experiencing the same factors as his initial course which led to his academic failure. In or around January 2017 87. The Applicant was diagnosed with an adjustment order and depressive illness by Dr Ann Locarnini. In or around January 2018 88. The Applicant decided to enrol in a Certificate III in Bricklaying/Blocklaying as he was working in the construction industry part time. The Applicant commenced his Certificate III Bricklaying and Block laying. During the course, the Applicant suffered from extreme back pain whilst conducting a practical activity in relation to the course. 22 November 2018 89. Diagnosed with scoliosis which impacted his Certificate III in Bricklaying/Blocklaying. Subsequently, the college allowed for the Applicant to complete a foundation course and transition to a Diploma of Building and Construction at Holmesglen in 2019. 4 February 2019 90. Diagnosed with suffering from Major Depressive Disorder. 22 August 2019 Applied for a student (subclass 500) visa 30 August 2019 91. The Applicant’s Higher Education Sector visa (subclass 573) expired 27 September 2019 92. The Department refused the Applicant’s Student (subclass 500) visa. Subsequently, the Applicant made an application to the Administrative Appeals Tribunal (AAT). 30 September 2020 AAT hearing was held 7 December 2020 93. Decision from the AAT not to grant the Applicant the Student (subclass 500) visa 23 December 2020 94. An application was submitted to the Federal Circuit and Family Court of Australian formally known as Federal Circuit Court of Australia In or around February 2021 95. The Applicant changed his course and enrolled in Certificate III in Light Vehicle Mechanical Technology at Menzies Institute of Technology. The Applicant’s reasons for his course change are explained in detail below. 16 June 2021 96. The Applicant received confirmation that his matter was remitted back to the AAT based on jurisdictional error and his case has been processing since.
The representative’s submissions then continued to address the concerns raised in the original delegate’s decision dated 27 September 2019 and the original Tribunal’s decision dated 7 December 2020 regarding whether the applicant meets the genuine temporary entrant criterion. The submission does so by elaborating, among other things, on the applicant’s study history, his medical history, his education ambitions, his ties to Sri Lanka, his motivation to study in Australia, and the employment prospects and remuneration the applicant gains from the Australian qualification. The submissions have been taken into account and given appropriate weight.
The Tribunal makes a number of observations in relation to these submissions. First they are generally consistent with the applicant’s oral evidence at the hearing and appropriately make reference to other documents. Secondly the representative states “we note that despite the applicant’s depression diagnosis he still engaged in part-time work in order to fund his daily expenses to relieve the financial burden off his parents”. It appears that whilst the applicant had been having troubles, apparently, with his studies he was able to work during this extended period. This is given some weight.
The applicant’s representative made further submissions after the hearing. They are dated 31 May 2022. The Tribunal makes a number of observations in relation to the legal submissions as follows. These submissions contend that the applicant had a cultural impediment in disclosing his feelings of mental ill-health. In part this relies upon the matters contained in Ms Williams’ report dated 29 May 2020. This is given little weight as discussed above. In other aspects these submissions rely on external documents which purport to make the same statements. In the absence of an opinion based on an assessment of the applicant as to these matters by a person properly qualified to do so, the opinions expressed in these external documents are given little weight. In any event if there was a cultural impediment then the applicant has not explained to the Tribunal’s satisfaction why that impediment was cast aside at a time of the applicant’s choosing. The applicant was apparently suffering from some medical conditions for years prior to seeing a psychologist and could have seen a psychologist at an earlier time or taken advantage of the university counsellors which were offered to him. The applicant’s decision to seek psychological assistance seems to coincide with his desire to keep studying in the face of possible and imminent exclusion. For example, one report, that of Ms Williams dated 28 January 2018, is clearly for the purposes of supporting the applicant’s then application to be released from the course of study.
100. The representative observes that a Bachelor of Construction Management was in “Teachout note”, a reference to the course being phased out. This is confirmed in a document from the course provider. However, this does not explain to the Tribunal’s satisfaction why the applicant decided, yet again, to change the direction of his study at that time rather than continue with the course at another provider.
101. Further documents are also attached to these submissions. They have been taken into account. The Tribunal accepts that the applicant was invited to show cause why he should not be excluded from the course in October 2016 and that he successfully appealed such a decision in March 2017. The Tribunal observes that the letter from the course provider, dated 6 March 2017, informing him of his success refers to evidence he had given in support of his application. Notably the letter referred to his appeal submission which stated that the applicant had “experienced adjustment difficulties which caused you to feel lonely, isolated and depressed”. The Tribunal notes that the applicant had consulted Dr Locarnini in January 2017. Further the letter observes that on 11 October 2016 the applicant informed the course coordinator, among other things, the applicant was experiencing “financial difficulties as you had not received any financial support from your family in Sri Lanka”. The applicant did not mention lack of financial support in the hearing as being a reason why he had difficulty studying in Australia.
102. A letter from a motor vehicle insurer dated 28 July 2016 refers to a motor vehicle accident on 18 July 2016. The insurer wrote off the vehicle and paid the applicant approximately $3,000. A letter from a different motor vehicle insurer dated 30 March 2016 requests that the applicant pay the excess under the policy. This appears to be in relation to a different motor vehicle accident. A letter from the same insurer dated 15 June 2016 refers to a claim in respect of an accident which occurred on 25 May 2016. The insurer wrote off the vehicle and paid the applicant approximately $700. These documents show only two motor vehicle accidents in 2016. Secondly they show that on each occasion the applicant was insured such that he received compensation for the loss of his vehicle. The documents do not detail any other accidents, apparently there were five in total, or who paid the insurance premium on the two occasions, or the outcomes of any other motor vehicle accidents. They are given little weight.
103. After the hearing, the applicant provided further documents in support of his application for review. The documents are as follows:
·Interim Statement of Results (Certificate III in Light Vehicle Mechanical Technology)
·ED WC-TAC Certificate from Eastern Health dated 1 May 2019
·Discharge Summary from Eastern Health dated 1 May 2019
·A photograph of a road or street intersection.
104. The Tribunal makes the following observations in relation to these documents. The document from Eastern Health in the form of a certificate appears to be for the purposes of the Transport Accident Commission in relation to a traffic accident which occurred on 1 May 2019, in relation to which the applicant suffered a head laceration. There is also a discharge document from Eastern Health in respect of the same injury, which is also dated 1 May 2019. The photograph has an annotation which states that it is the intersection at which the accident occurred on 1 May 2019. The Tribunal notes that the applicant has not produced any material to corroborate the other four traffic accidents and that these documents are not conclusive to establish that the accident occurred on 1 May 2019 or at all.
CONCLUSIONS
105. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.
106. Without diminishing the applicant’s evidence, it can be summarised as follows.
107. The applicant completed a Diploma of Computing in Sri Lanka between September 2014 and February 2015. The applicant did not provide any information regarding his Sri Lankan employment history. He has returned to Sri Lanka on two occasions, in December 2017 for one week and in April 2022 for approximately 13 days. The applicant also travelled to England for a vacation for one week in 2019. The applicant’s parents reside in Sri Lanka and his de facto partner resides in Australia. The applicant did not provide any information regarding ownership of any assets in Sri Lanka.
108. He has held a student visa between October 2015 and August 2019. The application for the student visa in question was made on 22 August 2019. The applicant appears to have had stable employment in Australia from 2015, although he said at the hearing that he is currently unemployed. Prior to the hearing, via information provided to the Tribunal, he stated his intention is to seek employment as a contract administrator in the building sector. Although at the hearing he stated his intention was to seek employment as a motor mechanic.
109. At the hearing he stated that he intended to return to Sri Lanka following the completion of the Diploma of Automotive Management. This stated intention is given little weight having regard to the applicant’s presence in Australia since 2015 and his extremely poor study history.
110. The applicant’s study history is extremely poor. This was explained to him in detail at the hearing and discussion of his study history occupied a significant part of the hearing. In summary his study history is as follows. First, that the applicant has only completed two courses since arriving in Australia. These are a Certificate IV in Tertiary Preparation Program, which was completed on 7 October 2016, and an ELICOS – General English non AQF award course which was completed on 21 December 2018. The applicant claimed to have completed a Certificate III in Light Vehicle Mechanical Technology but has not yet been issued a certificate of completion. Secondly, the applicant has enrolled in approximately 20 courses which he has not completed.
111. Thirdly, as noted above, the applicant has enrolled in the same courses on multiple occasions as follows:
·A Certificate IV in Tertiary Preparation Program on three occasions – two of which were after the applicant had successfully completed the course on 7 October 2016
·A Diploma of Computing on three occasions and did not complete any of them.
·A Bachelor of Information Technology on two occasions and did not complete either of them.
·A Diploma of Building and Construction (Building) on three occasions and did not complete any of them.
·A Bachelor of Construction Management and Economics on two occasions and did not complete either of them.
·A Certificate III in Light Vehicle Mechanical Technology on two occasions – one of which he claims to have now completed.
·A Diploma of Automotive Management on two occasions.
112. Lastly, after completing a tertiary program, the applicant has changed the direction of his study from computing and information technology to building and construction, and now to automotive courses.
113. The applicant’s case was built on several propositions to explain his poor study history. First, he relied upon mental health issues. The Tribunal notes that he was not examined by a psychologist and did not express concerns about his mental health until January 2017, purportedly due to a cultural impediment to disclosing his mental health issues. As discussed above, the Tribunal does not accept the opinion of the first psychologist in that regard, in the absence of evidence as to her expertise in the area of cultural impediment. However, the applicant’s representative provided more general evidence in support of such a cultural impediment. This is given some weight, although the author did not examine the applicant and cannot attest to whether he subscribed to such a cultural impediment. However, the Tribunal accepts that the applicant was diagnosed with mental health issues from January 2017. Further, that these mental health issues were said to have impeded his ability to study. However, the Tribunal also notes that both psychologists opined that the applicant was able to study at particular times. This seems to have corresponded with the applicant’s desire to continue with his then course of study or transfer to another course of study. While the applicant has produced evidence of mental health issues which impacted on his study, the Tribunal notes that the opinion evidence does not explain the frequent changes in direction of the applicant’s study. Also, the applicant was able to maintain steady employment during this period and in his appeal submissions in October 2016 informed his then course provider that he was having financial difficulties and relied upon this as one of the reasons for his poor performance. This may also explain his eviction from his accommodation and having to sleep in his vehicle for 2 days, a matter mentioned in the material and at the hearing. These matters are given some weight.
114. Secondly, the applicant referred to having five motor vehicle accidents in Australia and stated that these accidents also contributed to his inability to study. It seems that the motor vehicle accidents did not cause significant physical injuries, although on one occasion he was hospitalised for one night and received some stitches. As near as can be ascertained the effect was the stress of further financial burden upon his family caused by the motor vehicle accidents. Little corroborative documentation was provided to support the assertions of the car accidents and of the financial burden. However, after the hearing several documents were provided which support the assertion of two motor vehicle accidents and no more. In the absence of further documents, the Tribunal does not accept that there were other motor vehicle accidents. However, in relation to those motor vehicle accidents referred to in the documents, it is apparent that the applicant had the benefit of comprehensive car insurance because the insurer wrote off the vehicles and paid him money as a result. It also appears that the insurance excess was deducted from the monies, accordingly there was no financial detriment to the applicant or his father other than the loss of the vehicle. Accordingly, the Tribunal gives the assertion of the motor vehicle accidents as being a major contributor to his poor study history, directly or indirectly, little weight other than in respect of two accidents. Even then it is unclear the extent of the financial burden imposed on the applicant or his father.
115. Thirdly, the applicant relied upon his mother’s health issues as being a contributing factor to his poor study history and perhaps his mental health. However, there was no detail provided of his mother’s health issues other than being related to one or both knees and perhaps requiring some surgery. The documents which were provided, discussed above, were either in unintelligible handwriting or were technical in nature such as to be uninformative to the Tribunal. The Tribunal also notes that the applicant did not return to Sri Lanka during the period from 2015 until early 2022, other than for one occasion for 7 days. If he was concerned about his mother’s wellbeing it is reasonable to expect that the applicant would have returned to Sri Lanka in order to care for his mother or support her in some other way. There was no evidence that the applicant’s trip to Sri Lanka prior to 2022 was for the purposes of attending to his mother’s health issues. Accordingly, the proposition that this issue is causative of his poor study history or mental health problems is given little weight.
116. Next the applicant relied, perhaps not strongly, on the impact of the global pandemic interrupting his studies. This proposition was reasonably vague and was not pressed very strongly. In any event there was no corroborative material provided by the applicant to support a significant impact and no corroborative evidence that the applicant was affected by those matters any more than any other student who continued their studies. Accordingly, this issue was also given little weight by the Tribunal.
117. The applicant has not explained to the Tribunal’s satisfaction why he has not returned to Sri Lanka more frequently, why he did not return to Sri Lanka permanently after the refusal of his student visa application or at all having regard to his study difficulties, why he has changed the direction of his study on numerous occasions, why he has not returned to Sri Lanka having completed the Certificate III in Automotive Technology in order to take up the offer of employment in the field, why he was able to continue with employment in Australia despite his mental health issues, and why he did not seek treatment for mental health issues prior to January 2017.
118. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is unmarried, although in a relationship with a partner in Australia, and is from Sri Lanka. The applicant has provided evidence of direct family ties to his home country or other economic incentives to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to Sri Lanka, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Sri Lanka.
119. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 16 October 2015 as the holder of a student visa valid to 2019. The proposed study would extend the applicant’s stay until at least 2024. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.
120. The Tribunal does not place substantial weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First the applicant has changed the direction of his studies on numerous occasions whilst in Australia and there exists a reasonable doubt about whether he will stay the course on this occasion. Secondly the applicant has an offer of employment in his home country conditional upon completing a Certificate III qualification. Despite having achieved that qualification the applicant has not returned to Sri Lanka but has committed himself to further studies in the area. Lastly having regard to the applicant’s poor study history there exists reasonable doubt as to whether he will continue with these studies and successfully complete them.
121. The Tribunal observes that the applicant’s current study plan is inconsistent with his plans when he entered Australia.
122. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.
123. The Tribunal turns to consider whether there are any other relevant matters. The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant.
124. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between Sri Lanka and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to Sri Lanka. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to Sri Lanka.
125. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly, the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.
126. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 16 October 2015 the applicant has spent nearly 7 years in Australia and only returned to Sri Lanka on two occasions for short periods; there is no evidence or mean employment history in Sri Lanka or ownership of assets in Sri Lanka; his de facto partner resides in Australia; he appears to have had stable employment in Australia and intends to reside in Australia if permitted until at least 2024, all of which indicates that he does not appear to have strong personal ties to Sri Lanka. On balance, the Tribunal assesses the applicant’s incentive to return to Sri Lanka to be minimal.
127. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. While the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable him to achieve that goal. The applicant was granted a student visa which would have facilitated the applicant’s study in his desired field. On balance it appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.
128. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.
129. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.
130. There is no evidence before the Tribunal regarding the following factors indicated by the Direction: economic circumstances of the applicant; any potential military service in Sri Lanka; political or civil unrest circumstances in Sri Lanka; remuneration the applicant could expect to receive in Sri Lanka or a third country compared with Australia; circumstances in Sri Lanka relative to Australia or any other country; and the applicant’s circumstances in Sri Lanka relative to others in that country.
131. 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).
DECISION
132. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Peter Booth
MemberAttachment – 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;
d.whether 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.
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Intention
0
0
0