MOHAMMED (Migration)
[2020] AATA 3932
•20 July 2020
MOHAMMED (Migration) [2020] AATA 3932 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr SHEHZAD BADER MOHAMMED
CASE NUMBER: 1900092
HOME AFFAIRS REFERENCE(S): BCC2018/3095162
MEMBER:D Triaca
DATE:20 July 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 20 July 2020 at 10:58am
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– failed to provide the requested information within the prescribed period – genuine temporary entrant criterion not met– failure to demonstrate any academic progress – proposed study is not consistent with the applicant’s prior level of education – poor academic record–use the student migration program to maintain ongoing residence –decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 57, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 500.212CASES
Hasran v MIAC [2010] FCAFC 40
Vu Vu (Migration) [2019] AATA 5740STATEMENT 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 14 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 August 2018. 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 (the Regulations) because the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal 16 April 2020. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicant in connection with this application for review.
On 20 April 2020 the applicant requested an extension of time to respond to the Tribunal’s invitation. On 27 April 2020 the Tribunal extended time until 14 May 2020 in accordance with this request. There has been no further correspondence from the applicant since that time.
The Tribunal finds that the applicant did not provide further information as requested. In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
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.
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 critical issue is whether the applicant satisfies the primary criteria contained in cl 500.212 set out above. That clause states that for a student visa application to be successful the applicant must be a ‘genuine applicant for entry and stay as a student‘, in Australia.
The meaning of “genuine applicant” is well considered in Vu Vu (Migration) [2019] AATA 5740.[1] While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic’, ‘real’ or ‘true’ according to its ordinary and natural meaning. In order to be regarded as genuine, the applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[2]
[1] See [21] – [35]
[2] Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858
The applicant is a 30 year old citizen of India. He was granted his initial student visa on 28 February 2014 and first arrived on 24 April 2014. He was granted a subsequent student visa on 24 May 2016. He applied for a further student visa on 16 August 2018. On 14 December 2018 a delegate of the Department refused his application (delegate’s decision). On 2 January 2019 the applicant applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to documentation provided by the applicant to the Department and the Tribunal including the delegate’s decision; Application for a Student Visa 18 August 2018; Applicant’s Statutory Declaration 5 October 2018; Medical Certificates Care Hospitals 12 September 2018; GTE Statement; Form 956 Advice by a Migration Agent; Certificate of Overseas Student Health Cover; Passport; s57 Natural Justice Request 24 September and Response.
For the following reasons, the application is refused.
At the time of the application, the applicant was enrolled to undertake a Diploma of Business commencing on 3 September 2018 concluding on 21 August 2019 and an Advanced Diploma of Business commencing on 2 September 2019 and concluding on 29 August 2020 (proposed study). There is no evidence to suggest he has made any academic progress in either of these courses. Failure to demonstrate any academic progress in the proposed studies, noting that the applicant could well have completed one of the courses and be well progressed in the second at this time, weighs against the application.
The delegate’s decision records that since arriving in Australia, the applicant has enrolled in various courses and had a number of courses cancelled. These courses include Master of Information Technology; Master of Business Administration; Diploma of Leadership and Management; Advanced Diploma of Management (Human Resources) Diploma of Business and Diploma of Business Administration. His enrolments have been cancelled for a variety of reasons including failure to pay fees, transfer to another provider, unsatisfactory course progress and non-commencement of studies. The Tribunal is concerned that the applicant has not completed any course of study since arriving in Australia.
The applicant addressed his record in his Statutory Declaration, GTE Statement and response to the s.57 natural justice request regarding adverse information. The applicant states that he has made some “horrible mistakes” in the past and appears to have gone down a pathway that led to him using drugs and not studying. He says that this was caused by psychological issues and he provided a medical report form Care Hospitals in Hyderabad dated 12 September 2018 that details his history of psychological issues he has faced. It also reports that the applicant was admitted into hospital in Australia in about July 2017. The conclusion reached in the Medical Report is to the effect that the applicant had overcome his issues, responded well to prescribed medication and was unlikely to relapse.
The Tribunal accepts the matters set out in the applicant’s statutory declaration made 5 October 2018. It also accepts the matters set out in his statement in response to the Department’s section 57 Notice. It seems that the applicant was struggling with mental health issues for a period of time and sought treatment for those issues. It is reasonable to assume that these struggles adversely affected his ability to study for a period.
However, the Tribunal notes that the evidence in relation to the applicant’s troubles suggests that his issues commenced in early 2017. The medical certificate states that he was admitted to hospital in Australia in July 2017 and he admitted “using cannabis due to stress at work and college, 3-4 months prior to admission.” Accordingly, the Tribunal considers there is no adequate explanation for the applicant’s lack of any academic progress between the applicant’s arrival in Australia in 2014 and early 2017. This suggests that the applicant had a poor academic record in Australia prior to the onset of his issues and this weighs against the application.
The applicant’s application states that he completed a Bachelor of Engineering at the Chaitanya Bharti Institute of Technology in 2012. The Tribunal considers that he university degree level study completed by the applicant in India is at a higher level than the applicant’s proposed study. The university degree is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges.
The Tribunal considers the applicant’s University Degree places him in a good position to return home and find suitable employment and in this context, the value of the applicant’ proposed study is marginal. As such, the Tribunal does not consider the courses proposed will really assist the applicant obtain employment or improve his employment prospects in India. It follows that the Tribunal does not consider the proposed study will increase the remuneration the applicant could expect to receive in his home country or a third country.
The applicant has not demonstrated any reason why he requires a Diploma of Business or Advanced Diploma of Business for his future career. There is limited evidence in relation to his future plan. In his GTE Statement he says his goals are, “gaining an internationally qualified education before returning to my home country, to make my mother proud.” In his application he says that he hopes to find work as an, ”analyst, supporting the team leader, project management executive and an associate manager at a “top notch” firm like BMW, Mercedes, or Toyota.” He has not explained how the proposed study will assist him in this regard. It seems to the Tribunal that he ought to be able to find suitable employment on the strength of his university qualifications alone. It is not apparent why studying a vocational level course provides him with any real value.
The Tribunal does not consider the proposed study is consistent with the applicant’s prior level of education, noting his university Degree.
There is no evidence in relation to why the applicant could not undertake further study in his home country.
There is no evidence in relation to the applicant’s circumstances in his home country relative to others there.
There is no evidence regarding whether the applicant has any concerns in relation to political or civil unrest, or military service commitments in his home country.
The applicant’s family is stated to be his parents and brother in India. He says he is financially supported by his parents. He has returned home for medical treatment and to see his family. He was outside Australia for a period of approximately 9 months. He is now seeking to extend his time in Australia. He is unmarried and has no dependants. In these circumstances, the Tribunal does not consider the applicant’s personal ties to his home country operate as a strong incentive for him to return home.
There is no specific evidence to suggest the applicant has any ties to Australia that may operate as a strong incentive to remain here.
The evidence in relation to the applicant’s economic circumstances is as follows. He says he is financially supported by his parents. There is no evidence he has any assets in Australia or India. He has previously worked in Australia as a ‘night filler’ at Coles, at a car wash and a café all-rounder. He states in his application that he is unemployed and financially dependent on his parents. In the circumstances, the Tribunal does not consider the evidence supports the proposition that the applicant’s economic circumstances operate as a significant incentive not to return home.
The applicant appears to have travelled between India and Australia without issue. There is no evidence to suggest he has failed to comply with his visa requirements and the Tribunal makes no adverse findings in relation to his travel and immigration history.
The Tribunal notes the applicant’s statement and statutory declaration in relation to his failure to fully disclose his academic history at the time of his application. The Tribunal accepts that he did not intentionally mislead the Department and makes no adverse findings against him in this regard.
There do not appear to be any further matters relevant to the application.
Having regard to all the evidence, the Tribunal does not consider the applicant is a genuine applicant. On any objective view, his academic record since arriving in Australia is a poor one. There is no evidence he has made any academic progress since arriving here in 2014. This is concerning to the Tribunal. Whilst the applicant has some reasonable explanation for part of the time in which he experienced difficulties in his studies, his explanation does not adequately explain the entire period in which he failed to make any academic progress in Australia. In any event, the Tribunal considers that the applicant’s university qualification means that the proposed study offers only marginal value to his future and in these circumstances, the applicant appears to be utilising the student visa program as a means of maintaining an ongoing residence in Australia.
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).
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.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
D Triaca
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;
dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Intention
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Statutory Construction
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