Mohammed (Migration)

[2019] AATA 1992

Mohammed (Migration) [2019] AATA 1992 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Obaid Mohammed

CASE NUMBER:  1729892

HOME AFFAIRS REFERENCE(S):           BCC2017/3331491

MEMBER:Roger Maguire

DATE:18 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 18 June 2019 at 9:56am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time in Australia – poor academic progress – lengthy periods of non-enrolment – health issues – decision under review affirmed

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

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 Immigration and Border Protection on 10 November 2017 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 September 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was genuinely seeking to study the proposed courses for the reasons declared, and was more likely seeking to maintain residency in Australia.

4. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. At the conclusion of the hearing the applicant’s migration agent was given leave to deliver further submissions within two working days, which he said was sufficient time for him to do so. The applicant subsequently requested an extension of time for this, and was given until the close of business on 13 June 2019 to do so.  No further submissions have been received by the Tribunal, and there has been no request for a further extension of time.

7. Accordingly, the Tribunal considers that the applicant has had a reasonable opportunity to make any further submissions, and has elected to proceed to decide the matter.

8. In reaching its decision, the Tribunal also had before it a copy of the delegate’s Decision record (the Decision record), as well as the relevant file of the Department of Immigration and Border Protection.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria from 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 applicant for entry and stay as a student.

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

11. 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?

12. 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.

13. 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.

14. The  Decision record was provided to the Tribunal by the applicant at the time of application. The Tribunal is not bound by the Decision record, but may have regard to it.

15. The Decision record noted that:

    ·The applicant had been granted his initial Student (TU 573) visa offshore on 02 June 2014, which was valid until 13 September 2017, and arrived in Australia on 10 June 2014.

    ·At the time of the current application, the applicant was enrolled in a Bachelor of Professional Accounting from 10 July 2017 to 31 July 2019.

    ·PRISMS records indicated that since arrival on 10 June 2014, the applicant had nine enrollments cancelled, and only completed one course of study, a Diploma of Leadership and Management in June 2017. His initial enrolment was cancelled for non-payment of fees, and all other cancelled enrolments were for non-commencement of studies.

    ·Prior to coming to Australia, he had completed a Bachelor of Commerce (Computers) in India.

    ·The applicant had only spent 66 days outside Australia since first arriving.

    ·There was an eight-month period between 7 May 2015 and 6 February 2016 when the applicant remained on shore with no studies or enrolment.

16. On 17 April 2019, the applicant was sent a letter requesting information regarding his current enrolment in a registered course as well as information demonstrating that he is a genuine applicant for entry and stay as a student.

17. On 17 April 2019, the applicant delivered a response to the Tribunal, stating, among other things:

    a.    The applicant has returned to India for periods totaling 110 days since first coming to Australia.
    b.    The applicant has no pending visa applications and has never been refused a visa or had a visa cancelled or considered for cancellation.

    c.     The applicant had no concerns about military service commitments or political or civil unrest in his home country.

    d.    The applicant is currently enrolled in a Bachelor of Professional Accounting, and conceded that there are similar courses in India, and that some subjects are the same; however the applicant contended that it would be “more beneficial” for him to complete his accounting studies in Australia.
    e.    The applicant said that he has been enrolled in a registered course at all times while in Australia as the holder of a Student visa.

    f.   The applicant stated that he was currently studying a Bachelor of Professional Accounting due to commence in March 2017 and end in December 2018.

    g.    The applicant has worked as a housekeeper in Australia, earning up to $15,000, but disclosed annual living expenses of $21,600.
    h.    The applicant has family comprising his parents and four siblings in India and he last saw them in December 2018, and said that he keeps in touch using a range of Internet apps.

    i.The applicant disclosed no other ties in his home country, and none in Australia

    j.The applicant disclosed assets worth $200,000 in Hyderabad.

    k.     The applicant failed to give any specific plans for his future, beyond seeking employment in the government sector, where he hoped to earn 100,000 Indian Rupees per month.

    The applicant’s circumstances in his home country

18. Adopting the procedures in s. 359AA of the Act, the Tribunal put to the applicant that he had not given any satisfactory reason for undertaking his present study in a Bachelor of Professional Accounting in Australia when there are similar courses offering similar subjects in India, and that this might be all or part of the reason for the Tribunal to find that he is not a genuine applicant for entry and stay as a student. The applicant confirmed that he understood this and was asked to comment or respond or seek additional time prior to doing so.

19. The applicant said that he would like to continue his studies. The applicant said that in Australia study is more practical whereas in India the courses are expensive and not good, because they are not practical.

20. The Tribunal accepts that the applicant may have good reasons for choosing to undertake his proposed study in Australia.

21. Prior to coming to Australia the applicant had worked at Sravani Hospital as a front office executive for seven years earning $4,500 per annum.

22. He returned to India for 65 days in 2016 to visit family and for 45 days in November 2018 for hospital treatment for duodenal ulcer chronic disease.

23. The applicant confirmed he has no current job offers in India.

24. The applicant confirmed that he enrolled in a Bachelor of Professional Accounting to commence on 8 April 2019 and end on 15 July 2021, and said he was planning to return to India after that time.

25. The Tribunal accepts that the applicant has no fears of military service commitments in his home country, and that there are no circumstances of political or civil unrest which would directly or indirectly affect him.

26. Adopting the procedures in s. 359AA of the Act, the Tribunal put to the applicant that given he has stated that he is a single man with no community ties in India, and that he arrived in Australia on 10 June 2014, and is proposing to stay until July 2021, a period in excess of seven years, which is a long stay for a temporary entrant, that whatever the strengths of his ties to his home country, they do not present as a significant incentive for him to return. The Tribunal informed the applicant that this was a matter which the Tribunal might rely upon to find that he is not a genuine applicant for entry and stay as a student, and consequently affirming the decision under review. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.

27. The applicant said that if he just gets one chance he will go back to his country. He was depressed after his sister died from blood cancer and his father had a heart attack, and he is facing a lot of problems including his own health.

28. The Tribunal has considered the applicant’s response, and finds the duration of the applicant’s proposed stay in Australia is not consistent with entry and temporary stay. The Tribunal finds that the applicant’s ties to his home country do not present as a significant incentive to return to India

    The applicant’s circumstances in Australia

29. The Tribunal questioned the applicant about his living arrangements in Australia and community ties. The applicant said that he is sharing a house with friends.

30. The Tribunal asked the applicant what work he is doing and how much he is earning in Australia. The applicant said that he has been working as in house keeping earning about $450 per week.

31. The Tribunal put to the applicant that he has only completed one four-month course in the five years he has been in Australia did not study for eight  months during the life of his previous visa, that his last enrolment was cancelled on 3 August 2018, that he only recently enrolled to commence a Bachelor of Professional accounting after a further eight months, and that his poor enrolment and achievement record might be all or part of the reason for the Tribunal to find that he is not a genuine applicant for entry and stay as a student, consequently affirming the decision under review. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.

32. The applicant said that he was suffering from chronic disease and had returned to India for treatment.

33. The Tribunal accepts that the applicant’s academic progress has been impacted by his health, but nevertheless finds that his poor record of enrolment and achievement are not what is expected of a genuine applicant for entry and stay as a student.

34. Adopting the procedures in s. 359AA of the Act, the Tribunal put to the applicant that is his response to the Tribunal’s letter, he had stated that he had been enrolled in a registered course of study at all times whilst on a student visa, and that this was untrue. The Tribunal put to the applicant that this could be all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, as a genuine applicant would not lie to the Tribunal, and that this was a matter which the Tribunal might rely upon to find that he is not a genuine applicant for entry and stay as a student, and consequently affirming the decision under review. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.

35. The applicant said that he had many times cancelled his Confirmation of Enrolment (CoEs), and that he was depressed after his sister died. The Tribunal informed the applicant that he had not explained why he made a statement a few weeks ago that was not true.

36. The Tribunal has considered the applicant’s response and finds it does not satisfactorily explain why he gave an untrue answer to a question put by the Tribunal.

37. The Tribunal finds that the applicant’s circumstances in Australia weigh against the applicant.

    The applicant’s immigration history

38. Adopting the procedures in s. 359AA of the Act, the Tribunal put to the applicant that he has a very poor immigration history, has completed only one short course, has had lengthy periods of non-enrolment, which are matters that the Tribunal might rely upon to find that he is not a genuine applicant for entry and stay as a student, consequently affirming the decision under review. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.

39. The applicant said that he needs a chance and has to complete his study as his parents are waiting for him to complete his study. The applicant requested a chance to complete his study.

40. The Tribunal has considered this response and finds that the applicant has a poor immigration history.

41. The Tribunal finds that the applicant’s immigration history weighs against him.

    The value of the course to the applicant’s future

42. The applicant informed the Tribunal that he expects to receive credits from previous study in his current course and that will shorten the duration of his course.

43. Adopting the procedures in s. 359AA of the Act, the Tribunal put to the applicant that he is presently enrolled for the fourth time since 2015 in a Bachelor of Professional Accounting. There appears to be little reason to believe that his present study will be any more fruitful than his previous three efforts, and this might be all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, consequently affirming the decision under review. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.

44. The applicant responded and said that the CoEs were cancelled because he made mistakes sending emails.

45. The Tribunal has considered the applicant’s response and finds it to be implausible. The applicant has already had a reasonable opportunity to complete the enrolled course and there is little reason to believe that his fourth enrolment will be any more fruitful than his previous three.

46. 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) of Schedule 2 to the Regulations.

47. Accordingly, the decision under review is affirmed.

    R. Maguire

    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.