Mohammed (Migration)

[2020] AATA 3540

Mohammed (Migration) [2020] AATA 3540 (8 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr. Faiyaz Mohammed

CASE NUMBER:  1804074

HOME AFFAIRS REFERENCE(S):          BCC2017/4763082

MEMBER:P. Adami

DATE:8 July 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations

Statement made on 08 July 2020 at 12:48pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– detailed GTE Statement provided– family ties to home country – significant incentive to return home– genuine applicant for entry and stay as a student– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 December 2017. 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.

3. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily as a full time student.

4. On 10 October 2019, the Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act, inviting the applicant to provide further information to the Tribunal, including information as to his enrolment and being a genuine applicant for entry and stay as a student.

5. The invitation was sent to the review applicant’s registered migration agent Mr. Nishant Malik of Ozreach Consultants Pty. Ltd., being the contact details provided by the applicant in his 1 August 2018 ‘Appointment of Representative Appointment of Authorised Recipient- MR Division’ form filed with the Tribunal 2 August 2018.

6. The 10 October 2019 letter was headed ‘Invitation to Provide Information’ and included a link to a form, a ‘Request for Student Visa Information’. The Request for Student Visa Information could be completed online or printed out, completed and then returned to the Tribunal. The 10 October 2019 invitation to provide information further stated, “If you cannot provide the information by 24 October 2019, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 24 October 2019 and it must state the reason why the extension of time is required.”

7. The 10 October 2019 Invitation to Provide Information went on to state, “If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”

8. On 25 October 2019, outside the permitted time, the applicant filed a completed Request for Student Visa Information, together with other supporting evidence.

9. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1).

10. The Tribunal finds that the review applicant did not provide further information within the prescribed time. In these circumstances, the review 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.

11. It is appropriate to note 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 and Regulations have been met. Although the concept of ‘onus of proof’ is  not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

12. The Tribunal has proceeded to make a decision in this application having regard to all the information before it, including the information previously provided by the applicant to the Department and to the Tribunal, and also the out of time completed Request for Student Visa Information and the other evidence filed with it.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

16. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

17. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

18. The Tribunal has read and had regard to the documentation provided by the applicant to the Department and the Tribunal. This includes; the delegate’s Decision Record dated 9 February 2018; a completed ‘Request for Student Visa Information’; a 14 January 2020 updated Confirmation of Enrolment (COE) for the Master of Business Administration at the Holmes Institute issued to the applicant with a course start date of 1 January 2020 and a course end date of 15 July 2020; Marriage Certificate issued 5 March 2019; 21 October 2019 letter from Om Sai Hospital evidencing the applicant’s daughter’s 18 October 0219 birth; 5 March 2019 job offer letter addressed to the applicant from Milstone Brandcom in Hyderabad, India; Notification of Results issued to the applicant by Holmes Institute for the Master of Professional Accounting and Master of Business Administration; applicant’s 22 October 2019 GTE Statement.

19. The applicant is a 26 year old Indian man who initially travelled to Australia on 21 October 2015 holding a Student visa which commenced 15 October 2015 and expired on 20 December 2017. On 13 December 2017 the applicant applied for a further Student visa, which was refused by a delegate from the Department on 9 February 2018. The applicant was granted a Bridging Visa A (Class WA) (Subclass 010) which has a ‘Work’ limitation and a ‘Single Identity’ limitation which commenced 13 December 2017. It is the delegate’s refusal of 9 February 2018 which gives rise to the application for review now before the Tribunal. A copy of the delegate’s decision was provided by the applicant to the Tribunal at the time of his application for review.

20. The applicant arrived in Australia having completed a Bachelor of Commerce degree between May 2012 and March 2015. The applicant does not list any work history in his completed Request for Student Visa Information prior to arriving in Australia.

21. At the time of the delegate’s February 2018 decision, the applicant was enrolled to study a Master of Professional Accounting and a Master of Business Administration. The applicant expects to complete his Master of Business Administration on 15 Jul 2020, and although he does not specifically state an intention to return home to India, he strongly implies an intention to return home. The applicant lists in his completed Request for Student Visa Information that he between October 2015 and July 2016 he did not complete the 2 ELICOS course he enrolled in at Central Queensland University. The delegate notes in their decision that the applicant stated that culture shock, health issues and lack of support from his education provider led him to change education provider. Between July 2016 and September 2016 the applicant completed an ELICOS course at Metro English College. The applicant thereafter enrolled in the Master of Business Administration at Universal Business School of Sydney in which he passed 2 out of 3 subjects.

22. The applicant then transferred into the Master of Professional Accounting course in March 2017 and the Master of Business Administration in July 2017. The Tribunal notes that the applicant expected to finish his studies in December 2019. The applicant filed an updated COE with the Tribunal in which he expects to finish his studies on 15 July 2020. Given the applicant has filed Notification of Results for his studies which indicate he has nearly completed the required 16 units for the degrees, the Tribunal considers that the applicant should be allowed to complete his studies and return home in the near future.

23. The applicant states in his 22 October 2019 GTE Statement that, “Meanwhile, during these time I got married in India and I had one baby girl. My wife and daughter are in India looking after my property; furthermore, during my last visit to India I got a job offer as a Financial Analyst at Milestone brandcom with a condition of having a masters degree. In conclusion, I would like to say that to complete my full course, I need a visa. I think I am well equipped to finish this program on this extended time. I believe that Professional Accounting is an admirable discipline coupled with MBA and feel that studying this subject at this Institute can help me to become a successful person. I am confident that if given this opportunity I can achieve my goal and finish my study.” [original] The applicant states an intention in his GTE Statement to work in the accounting field and the job offer is for a financial analyst position with a stated income, holiday and bonus incentive structure.

24. The applicant does not propose any further study in Australia beyond this currently enrolled study and he has not proposed any plans to apply for a further visa to remain in Australia of any nature. The Tribunal considers there is value to the applicant’s career prospects in completing the Master of Business Administration, and thereafter returning home. The Tribunal considers the delegate’s concerns regarding whether the applicant is a genuine temporary entrant were fair and reasonable. At the least, the Tribunal considers that the applicant had a poor start to his academic history in Australia.

25. The applicant states in his October 2019 GTE Statement that studying in Australia allows him to obtain international qualifications in a relevant field of study to his career plan. The Tribunal considers that applicant also has the benefit of studying in English taught course and improving his English skills. The Tribunal considers the proposed study will add value to the applicant’s future and are related as they are both in the business field.

26. The applicant in July 2020, when he expects to complete the Master’s degree Management, will have studied in Australia for approximately 5 years. The Tribunal considers the applicant’s desire to complete the proposed course and thereafter return home demonstrates a genuine intention to temporarily study in Australia.

27. There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to the circumstances of others there.

28. The applicant states in his completed Request for Student Visa Information that his parents, brother, sister, wife and daughter all live in India. The applicant states in his completed Request for Student Visa Information that he keeps in contact with his parents and wife every day. The applicant has returned home on 3 occasions since arriving in Australia in October 2015. Firstly, in January 2017 for 16 days; secondly, in November 2017 for 20 days; and thirdly, in January 2019 for 60 days. The Tribunal considers that the applicant’s wife and daughter born 18 October 2019, together with his family, provide a significant incentive for the applicant to return home to India.

29. The Tribunal notes that the applicant lists in his completed Request for Student Visa Information that he has worked from January 2018 to date as a traffic controller and security. The applicant lists he has earned $16,000 per annum and $49,000 respectively. The applicant also lists in his completed Request for Student Visa Information that his expenses total approximately $25,560 per annum. The Tribunal does not consider the applicant’s economic circumstances in Australia act as a significant incentive for the applicant not to return home given the applicant’s relatively short work history and living expenses total. The applicant also lists that he owns a house and a car worth approximately $140,000.

30. There is no evidence that the applicant has significant community ties such that they would present as a strong incentive to remain in Australia or return to India. On balance the Tribunal does not consider this factor weighs in favour of or against concluding the applicant is a genuine temporary entrant in Australia. The applicant states that he has no military service commitments that would serve as a significant incentive not to return home. Further, the applicant states that he does not have any political or civil unrest in his home country that may induce him to apply for a student visa to obtain entry into Australia for the purposes of remaining indefinitely.

31. There is no evidence before the Tribunal that he has breached any visa from Australia or any conditions attached to an Australian visa. There is no evidence that the applicant has been denied a visa to Australia or any other country. The applicant has not applied for any other Australia visa where a decision on that application has not yet been made. The Tribunal considers that the applicant’s intention to return home (although not clearly stated) upon completion of the Master’s degree and to take up Milestone Brandcom’s 5 March 2019 job offer in Hyderabad, persuade the Tribunal that the applicant is a genuine temporary entrant. The Tribunal considers that without the job offer and recently married wife and infant daughter in India, it would have been difficult for the Tribunal to find that the applicant genuinely intends a temporary stay in Australia, given the amount of successfully completed study since arriving in Australia in 2015.

32. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a). For the avoidance of doubt, this matter is to be remitted to the Department with a Direction that the applicant meets the criteria on the basis that the applicant has a clear study plan; that he intends to return home upon completion of the Master of Business Administration degree this month to take up the job offer and return to his wife and daughter.

33. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

34. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    P. Adami

    
    

    Member

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.