Mosbey (Migration)
[2019] AATA 6910
•17 October 2019
Mosbey (Migration) [2019] AATA 6910 (17 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Joshua Kipkorir Mosbey
CASE NUMBER: 1713398
HOME AFFAIRS REFERENCE(S): BCC2016/2809651
MEMBER:Mila Foster
DATE:17 October 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 17 October 2019 at 8:32am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study at lower levels and in different subject areas than in home country – steps to gain professional registration – authenticity of job offer in home country after completing current course – registered de facto relationship with Australian citizen, father figure to partner’s children, and child together – own children by previous relationship in home country – anonymous allegation of wanting to bring children to Australia – no response to tribunal’s invitation to comment on adverse information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 376, 395
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 June 2017 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 24 August 2016. 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 delegate was not satisfied that the applicant had a genuine intention to stay in Australia temporarily.
RELEVANT LAW
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.
Enrolment: cl.500.211
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
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.
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant (GTE) 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.
CLAIMS AND EVIDENCE
The claims and evidence are contained on the Department of Home Affairs file relating to the applicant’s student visa application which includes documents connected to the cancellation of a bridging visa the applicant was granted when he applied for the student visa, documents the applicant submitted on review and the evidence the applicant gave at a hearing before me on 5 April 2019. The applicant was assisted by a migration agent in connection with his student visa application and, until recently, during the review.
Evidence on Department file
According to the student visa application form the applicant:
a.Is a 33 year old Kenyan national.
b.He has never married
c.He had no accompanying family members.
d.His parents, four brothers and a sister resided in Kenya.
e.His studies would be funded by a parent with the funds held at the Equity Bank.
f.The highest level of education he completed outside Australia was a Bachelor of Science degree majoring in nursing at a Kenyan university.
g.He completed four courses in Australia: Certificate III in Aged Care and Certificate III in Disability from January to June 2015, Certificate IV in Project Management Practice from January to June 2015, and Diploma Project Management from July 2015 to June 2016.
h.He was applying to undertake a course with Confirmation of Enrolment (CoE) code of 82D3A097, namely, an Advanced Diploma of Leadership and Management.
i.He had been employed as a disability support worker at a health care facility since August 2015. He previously worked in Australia as an Assistant in Nursing from January to May 2015. Prior to that he had worked as a nurse in Kenya.
j.In the preceding 10 years he had not visited any country including Kenya, his country of usual residence.
k.He was the holder of an Australian student visa, he had never failed to comply with the visa conditions of any visa or departed outside the authorised period of stay, and had never had an application for entry or further stay in Australia or any country refused or had a visa a cancelled.
The applicant indicated in his student visa application that he had submitted a statement in relation to the GTE criterion and his CV but the supporting evidence listed at the end of is application does not indicate that he did so.[1] Nor are there any such documents on the Department file.
[1] At f.1.
The documents on the Department file include, but are not limited to, the following:
a.Evidence of the Kenyan bachelor degree conferred on the applicant on 4 July 2007.[2]
[2] At f.110.
b.Equity Bank statements for an account in the applicant’s father’s name.[3]
[3] At ff. 140, 77-79.
c.Academic transcripts and certificates relating to the Certificate III in Aged Care, Certificate III in Disability, Certificate IV in Project Management Practice, and Diploma of Project Management completed by the applicant.[4]
[4] At ff. 102-109.
d.Bridging Visa Grant Notice informing the applicant that he had been granted a bridging visa on 24 August 2016 allowing him to remain in Australia during the processing of his student visa application which gave him full permission to study while the bridging visa was in effect.[5]
[5] At ff. 166-168.
e.A letter from the Department dated 5 October 2016 requesting more information from the applicant in relation to his student visa application.[6]
[6] At ff.155-164.
f.Form 1022 Notification of changes in circumstances form completed by the applicant on 25 October 2016 advising the Department that on 26 September 2016 he was charged with two offences of sexual intercourse without consent and was due to appear in court on 7 December 2017.[7]
[7] At ff. 98-100.
g.Various documents relating to the sexual assault charges.[8]
h.Email sent to the Department on 3 November 2016 by the applicant’s migration agent in response to the request for further information made on 5 October 2016.
i.A letter from the Department dated 8 March 2017 requesting more information from the applicant about his student visa application which related to the assessment of Public Interest Criterion 4013.[9]
a.A letter from the applicant’s migration agent dated 5 April 2017 in response to the preceding request for further information.[10] The response stated that the applicant was in a de facto relationship with an Australian citizen named Skye Phyllise Doust, the applicant and Ms Doust were expecting a child together in February 2017, the applicant was Ms Doust’s spouse and a father figure to her four children from another relationship, Ms Doust and her children were dependent on the applicant for support and given the applicant’s lack of work rights he had used his financial savings and funds borrowed from family overseas to support Ms Doust and her children.
b.An application made on 29 March 2017 to the NSW Registry of Births Deaths and Marriages to register the relationship between the applicant and Ms Doust.[11]
c.A letter dated 14 March 2017 from Dr S Sundar Rajan certifying that Ms Doust was 4 weeks and 3 days pregnant.[12]
j.A record of a decision made by the Tribunal (differently constituted) on 2 May 2017 setting aside the decision made by a delegate on 5 December 2016 to cancel the applicant’s bridging visa.[13]
k.The record of the decision made by the delegate on 5 June 2017 to refuse to grant to applicant a student visa.[14]
l.A document regarding information the Department received about the applicant on 4 July 2017 via the ‘departmental webform’ (‘the dob-in information’). The document does not identify the person who made the allegation. The document indicates that the informant is an ‘associate’ of the applicant and has known the applicant ‘for a fair while’. The informant makes serious allegations about the applicant’s character, states that the applicant is willing to do anything to get permanent residence in Australia, wants to bring his two daughters here, and has being working here without work rights.[15]
m.A certificate and notification purportedly made on 5 July 2017 under s.376(1)(b) of the Act by a delegate of the Minister in relation to the dob-in information.[16]
[8] At ff.122-135, 93-97, 89-91, 26-27. Some of the documents were provided to the Department by the NSW Police and some others appear to have been provided by the applicant (see f.42).
[9] At ff.175-182.
[10] At ff.44-46.
[11] At ff.47-51.
[12] At ff.64,65.
[13] At ff.148-154.
[14] At ff.184-192.
[15] At f.195.
[16] At f.196.
Review application
The applicant submitted a copy of the delegate’s decision record with his review application.
Invitation to comment on or respond to adverse information
On 18 November 2018 the applicant was invited pursuant to s.359A to comment on or respond to the following information:
a.According to the Department of Education and Training PRISMS database the applicant did not have a current CoE. That indicated the applicant was not enrolled in a course of study and hence did not meet the criterion in cl.500.211.
b.According to the PRISMS database the applicant completed a Certificate IV in Project Management Practice course of about 5 months duration in June 2015, a Diploma in Project Management course of about 6 months duration in July 2016 and an Advanced Diploma in Leadership and Management course of about 2 months duration in April 2018. That information indicated the applicant had only completed about 13 months of study over a period of almost 4 years and had not engaged in a course of study in over 6 months. Hence he was not a genuine student, did not intend to genuinely stay in Australia temporarily and thus did not meet cl.500.212.
c.The dob-in information provided to the Department indicated the applicant was not a genuine student but had applied for the student visa to maintain residence in Australia while he attempted to obtain permanent residence and had breached his visa conditions by working without work rights. Hence he did not genuinely intend to stay in Australia temporarily and/or did not intend to comply with any conditions of the student visa if it was granted to him and thus did not meet cl.500.212.
The applicant’s response was received on 3 December 2018. It consisted of a statutory declaration made by the applicant on 3 December 2018 with a number of attachments.
In relation to not being enrolled in a course of study, the applicant stated that after completing the Advanced Diploma in Leadership and Management in April 2018 he chose to take the final steps to becoming a registered nurse in Australia which included completion of the bridging course ‘Return to practice/Initial Registration of Overseas Nurses – Registered Nurse’ course. There were many steps involved in meeting the requirements of that course which he had been busy working on since March 2018. He was close to receiving a CoE from Deakin University for the course. He detailed and attached correspondence as evidence of the efforts he had made to become eligible for the course.
In relation to being a genuine student, the applicant stated:
a.He began studying his Certificate IV in Project Management upon his arrival on 12 January 2015 and finished on 3 July 2015.
b.He began the Diploma in Project Management course in July 2015 and completed it on 3 July 2015. It was a 12 month not 6 month course.
c.He began the Advanced Diploma of Leadership and Management course on 3 October 2016 and completed it on 6 April 2018. It took longer than the usual 12 months to complete because the Department wrongly cancelled his bridging visa and due medical issues.
d.Over the course of the preceding four years of his studies he had maintained regular contact with his previous employers and they discussed the importance of him also gaining work experience as a registered nurse in Australia. He provided a detailed chronology of the efforts he had made to obtain a CoE from Deakin University.
In relation to the dob-in information, the applicant stated that the allegations were false and he suspected the allegations were made a person who was attempting to create problems for his visa. He had been upfront with the Department about the criminal charges which were dismissed and the Tribunal would be aware of his previous bridging visa hearing. He said he had never breached his visa conditions.
Additional supporting documents submitted on review
The applicant provided further documents before and after the hearing in support of his application for review which included the following:
a.A second statutory declaration made on 28 March 2019.
b.A Letter of Offer made to the applicant on 4 March 2019 by the Australian College of Nursing stating that he had been allocated a place in the 12 week Graduate Certificate in Nursing (Bridging and Re-entry) course commencing on 25 March 2019.
c.A CoE confirming the applicant was enrolled in a Diploma of Mental Health course starting on 18 April 2019 and ending on 15 April 2021.
d.A letter dated 26 March 2019 from D K Koech, the Assistant Resource Manager of a Kenyan organisation named AMPATH, offering the applicant the position of Psychiatric Nurse – Unit Manager on completion of a bridging course granting him registration as a nurse in Australia and the Diploma of Mental Health course in June 2021.
e.A letter dated 13 March 2018 from a barrister informing the applicant that the charges against him had been withdrawn and dismissed.
f.A letter dated 26 March 2019 from Dr Edmond Iruthayanthan, a psychologist.
g.The applicant’s daughters’ birth certificates.
h.Two letters dated 27 March 2019 from two schools in Kenya. Each letter relates to one of the applicant’s daughters. They confirm that his daughters are pupils at the schools and are under the guardianship of the applicant’s father who pays their tuition fees.
i.A Kenyan land agreement made on 14 November 2013.
j.Two receipts dated 17 October 2011 said to be ‘land purchase receipt’.
k.A document said to be an ‘electricity bill’ which refers to the applicant as the customer.
l.A Kenyan bank statement for an account in the applicant’s name for the period from March 2018 to 27 March 2019. The statement contains one entry, a 3.35 credit balance.
In the second statutory declaration the applicant stated:
a.Two of his siblings and their partners were in Australia as holders of student visas.
b.He had little financial ties in Kenya due to the time he had spent away but as he had a genuine intention to return he had maintained a bank account there.
c.He also owned two properties and was responsible for paying their utility bills
d.Aside from his immediate family, an offer of employment, his property and financial ties, his main commitment in Kenya was his daughters.
e.His daughters were 7 and 9 years old and were attending school in Kenya. His father was acting as their guardian but he was heavily involved in their lives and maintained regular contact with them.
f.The motivation for all his efforts and studies in Australia was to give his daughters a successful life and a strong example of perseverance. The thought of remaining in Australia a further two years was daunting but his daughters will be about 12 years and 7 years then and it will be important for him to be there.
g.His daughters’ mother relocated to Australia in 2015 leaving his daughters with his parents. He had very limited contact with their mother but his impression was that she was now a permanent resident and had no intention of returning to Kenya. This is a stronger incentive for him to return to Kenya but he wants to depart Australia with his head held high and qualifications he is confident would benefit his career and fellow citizens in Kenya.
h.In relation to his immigration history, he made all appropriate efforts to comply with visa conditions and do what was right and expected of him both under migration and criminals laws. He was falsely charged with serious offences that had been dismissed but took a significant toll on him personally and financially to resolve and resulted in the cancellation of his bridging visa which was subsequently reinstated on review.
In his letter Dr Iruthayanthan stated that the applicant was referred to him by a GP to manage anxiety and depression. He first assessed the applicant in July 2016 and subsequently provided the applicant with counselling twice a month, then monthly and after that according to the applicant’s needs. The applicant was still attending counselling for ‘personal growth and development’. Dr Iruthayanthan gave a brief account of what he referred to as the applicant’s background history which included an outline of the applicant’s family – the applicant’s father, mother and five siblings were mentioned but not the applicant’s children. Dr Iruthayanthan listed the applicant’s education and employment, and referred to the applicant’s personal qualities and his ability to successfully come through adversity, and said he was advocating on the applicant’s behalf and asked that ‘his Student Visa be considered’.
Tribunal hearing
The applicant attended a hearing before me on 5 April 2019 to give evidence and present arguments about the issues in his review. His migration agent also attended and made oral submissions at the end of the hearing.
At the hearing I noted that the applicant had a current CoE and hence seemed to satisfy cl.500.511.
The applicant was provided with a copy of Direction No.69 and he gave evidence in relation to the factors in the Direction.
I also raised several concerns about the AMPATH letter and whether the offer it contained was genuine. I noted, for example, that the Mr Koech’s letter contained a job offer but according to the AMPATH website employment opportunities are posted on three websites, there was no reference to Mr Koech on the AMPATH website, and the email address in Mr Koech’s letter was a ‘gmail’ address even though none of the email addresses on the AMPATH website were ‘gmail’ addresses. The applicant said the letter was sent to him via email and he would forward that email to the Tribunal. That email has not been provided to the Tribunal since then. Further, the applicant said he hoped to meet with Mr Koech in person to confirm the existence of the position.
I elaborate on the evidence given at the hearing further in my findings and reasons below.
Email from Mr Koech
On 19 April 2019 the Tribunal received an email from Daniel Kemei Koech via the email address [email protected] in which he stated:
The letter I signed for Mr Joshua Kipkorir Mosbey on 26/03/19 was prepared while I was on leave and I am sincerely sorry for the use of an expired letterhead.
I wish to notify your Tribunal that Mr Mosbey has an offer of employment recorded with AMPATH (reference 3335155434) as per my letter. I have had regular communication with Mr Mosbey as he was personally referred to me by a colleague.
Tribunal’s post-hearing inquiries
After the hearing the Tribunal accessed the Facebook pages of the applicant and Skye Doust, Department movement records relating to the applicant’s brother Daniel Kipkosgei Mosbei, and sister Rael Chemeli, and contacted AMPATH.
According to the applicant’s Facebook page, he has been in a relationship since 24 February 2017.
Posted on the Ms Doust’s Facebook page on 27 February 2017 is a photograph of the applicant and Ms Doust. In a comment on the post, an individual asks, ‘u got a new bf?’ to which Ms Doust replies, ‘Yes this is my man joshua’.
According to the Department’s movement records, the applicant’s brother entered Australia on 26 August 2017 on a student visa, his sister entered Australia on 15 February 2017 on a student visa and was granted a further student visa on 25 July 2019 extending her stay in Australia until March 2022.
In response to the Tribunal’s inquiry, AMPATH advised on 14 August 2019 that it has never had an employee named Daniel Kemei Koech with the job title of Assistant Human Resources Manager and did not have a job title of Assistant Human Resources Manager.
On 4 September 2019 the applicant was invited pursuant to s.359A to comment on or respond to the above information. His response was due by 19 September 2019. On 12 September 2019 the applicant’s migration agent informed the Tribunal that he no longer acted for the applicant but the applicant had been provided with a copy of the invitation and was aware of the deadline. On 16 September 2019 the applicant confirmed that the migration agent was no longer his representative or authorised recipient. On 19 September 2019 the applicant requested an extension of time to respond to the invitation. He was granted an extension until 10 October 2019. To date no response has been received.
CONSIDERATION OF CLAIMS AND EVIDENCE
I am satisfied on the basis of the CoE relating to the Diploma of Mental Health course that at the time of this decision the applicant is enrolled in a ‘course of study’ and accordingly cl.500.211 is met. The issue is thus whether the applicant intends genuinely to stay in Australia temporarily. Having considered all the claims and evidence before me I have concluded that he does not and that the decision under review should thus be affirmed.
Psychologist’s letter
Dr Iruthayanthan’s letter reads more like a character reference than a medical report. Dr Iruthayanthan states that the applicant previously attended counselling to manage his anxiety and depression but now attends counselling for personal growth. Dr Iruthayanthan does not indicate that the applicant was suffering mental illness at the time of the hearing or that the applicant’s ability to present his case on review or give evidence and presents arguments at the hearing was impaired by mental illness. The other information in the letter regarding the applicant’s background, education and employment has essentially already been presented by the applicant. I have thus given very little weight to Dr Iruthayanthan’s letter in assessing whether the applicant intends genuinely to stay in Australia temporarily.
Dob-in information
Section 376(1)(b) allows the Minister (or his delegate) to limit the disclosure of material given to the Tribunal by the Department by notifying the Tribunal, in writing, that the material was given in confidence. For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or an officer of the Department by an external source or third party with the expectation that the material would be treated as confidential and wouldn’t be disclosed, and that the information is not public or common knowledge.[17]
[17] SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].
While relevant I am not required to take at face value the statement in the certification and notification issued by the Minister’s delegate on 5 July 2017 that the dob-in information about the applicant was given in confidence.[18] No reasons were given by the delegate for the statement that the dob-in information was provided in confidence nor is there evidence before me to indicate that the person who provided the dob-in information did so with the expectation that the material would be treated as confidential and would not be disclosed. I thus find that the information does not have the necessary quality of confidence required for s.376(1)(b). Therefore, the certificate and notification is not valid and does not restrict disclosure of the dob-in information. For that reason I gave the applicant the opportunity to comment on or respond to the dob-in information pursuant to s.359A. Having considered the applicant’s response and in the absence of any information about who provided the dob-in information or their motivation in doing so, I have given the dob-in no weight.
[18] NAVK v MIMA (2004) 135 FCR 567 at [108] and [111]. See also SZMTA v MIBP [2017] FCA 1055 (White J, 5 September 2017) at [48]-[53]. Although stamping copies of a document ‘in confidence’ may indicate a departmental officer’s view that the information was confidential, that could have been done without the documents having been ‘given’ to the Minister or an officer of the Department: [52].
Letter and email from Daniel Koech
I find on the basis of the information provided by AMPATH to the Tribunal on 14 August 2019 that Daniel Kemei Koech has not been an Assistant Human Resource Manager at AMPATH and that the letter of 26 March 2019 purportedly from Mr Koech is not genuine. I therefore find that the applicant has not communicated with a person named Daniel Kemei Koech regarding future employment with AMPATH and that the applicant arranged the email to be sent to the Tribunal on 18 April 2019 from a person claiming to be Daniel Kemei Koech and that the email contained false information. I thus do not accept the applicant has been offered employment with AMPATH or that he is seeking a further student visa to undertake the Diploma of Mental Health Course for the purpose of securing a job with AMPATH.
Direction No.69 factors
Applicant’s circumstances in Kenya
The applicant stated at hearing that he was undertaking the Diploma of Mental Health course in Australia rather a similar course in Kenya because Mr Koech indicated that AMPATH would value an overseas qualification for the job being offered at AMPATH. As I do not accept that the applicant is undertaking the course for the purpose of securing a job with AMPATH I find that the applicant does not have reasonable reasons for not undertaking the study in his home country.
The applicant has two young children, parents and three brothers in Kenya. His children are being cared for by his parents. At the hearing he said he had not returned to see his family in Kenya since arriving here because of the court case pending against him here. I regard that a credible explanation. According to documentary and oral evidence presented by the applicant he owns a vacant piece land and a house in Kenya. He stated at the hearing that he does not derive any income from either property. He claims he has maintained a bank account in Kenya as he intends to return there. I have had regard to the applicant’s family and economic ties in Kenya but do not regard them as significant incentives for him to return to Kenya in light of his circumstances in Australia which I describe below.
The applicant stated at the hearing that he had no military service commitment in Kenya nor were there was there any political or civil unrest in Kenya that affected him.
Applicant’s potential circumstances in Australia
On the basis of the information in the migration agent’s letter of 5 April 2017 about the applicant’s relationship with Ms Doust, her children and Ms Doust’s pregnancy; the application made on 29 March 2017 by the applicant and Ms Doust to register their relationship, the letter from Dr Rajan dated 14 March 2017, the applicant’s relationship status on his Facebook page, and the post Ms Doust made on her Facebook page on 27 February 2017 – I find that the applicant has been in a relationship with Ms Doust since February 2017, they have had a child together, he has a close bond with Ms Doust’s other children, and he financially supports Ms Doust and her children. I regard the applicant’s relationship with Ms Doust, their child and her other children to be a very strong incentive for the applicant to remain in Australia.
The applicant gave a detailed account in his first statutory declaration about the steps he had undertaken from March 2018 to enrol in a nursing bridging course which would enable him to work as a registered nurse in Australia. This indicates he has a strong desire to gain registration as a nurse and work as a registered nurse in Australia. The applicant claims he is pursuing registration so that he can gain work experience as a registered nurse in Australia which he needs for the job he has been offered at AMPATH. At the hearing the applicant stated that he had commenced a nursing bridging course which was not a ‘course of study’ and would be undertaking that course while undertaking the Diploma of Mental Health course. He is due to complete the mental health course in April 2021. That would extend his stay in Australia to over 6 years. As I do not accept that the applicant has been offered employment with AMPATH or that he is applying for the student visa to undertake the Diploma of Mental Health course for the purpose of securing a job with AMPATH, I have concluded that the applicant is using the student visa programme to maintain ongoing residence in Australia due to his strong personal ties here, and so that he can complete the nursing bridging course, obtain registration as a nurse and work as a registered nurse in Australia rather than to Kenya.
Value of the course to the applicant’s future
The applicant has a nursing degree from Kenya. The Diploma of Mental Health might improve the applicant’s prospects of gaining employment in Kenya or a third country as a nurse specialising in mental health. However, I have concluded that the applicant is not undertaking the Diploma of Mental Health course to secure future employment with AMPATH as he claimed but is doing so to obtain a student visa so that he can remain in Australia where he has strong personal ties, complete the nursing bridging course he has commenced, gain nursing registration and work as a registered nurse in Australia.
Applicant’s immigration history
The applicant stated at the hearing that he had visited some African countries before coming to Australia on a student visa. The delegate’s decision to cancel the applicant’s bridging visa was set aside by the Tribunal. I have no credible evidence that the applicant has breached his visa conditions. Those matters are considerations favourable to the applicant. However, I regard the length of time the applicant has spent in Australia and the courses he has completed here as more significant considerations. I elaborate below.
Having arrived in Australia on a student visa in January 2015 the applicant has now spent over 4 ½ years here. He arrived here with a bachelor of nursing degree and limited work experience as a nurse in Kenya. During his time here he has completed three courses of study: a certificate IV course and a diploma course in project management followed by an advanced diploma of leadership and management course. Each of those courses is below the bachelor of nursing he attained and not prima facie directly related to nursing which raises questions about why he undertook those courses. It took considerable questioning at the hearing to elicit from the applicant why he undertook the project management and leadership and management courses. I did not find his evidence forthright. Further, it was confused, hard to follow and contradictory.
Initially the applicant indicated that he decided to undertake the project management courses to get a job with an NGO in Kenya. He said that as a result of constitutional changes in Kenya the functions of the ministry of health were devolved to the county level but the county he was posted to as a nursing intern after graduating did not implement the changes and hence he was not employed on a permanent basis. Consequently he applied to private hospitals and NGOs which advised him to get project management qualifications as they mainly dealt with project management. I questioned why then the applicant did not return to Kenya after he gained his project management qualifications. He replied vaguely that he thought the system would have improved with the implementation but most of the counties continued to experience the same problems. However, the applicant had stated that he undertook the project management courses to gain employment outside the system with an NGO. When I put that to him his response was hesitant. He eventually indicated that some colleagues with project management qualifications were absorbed by NGOs but some were not. If the applicant did not return to Kenya because he believed his project management qualifications would no longer improve his employment prospects with NGOs then I expect he would have mentioned that when I first asked why he had not returned to Kenya after completing his project management courses if, as he initially claimed, he undertook those courses to gain employment with an NGO. I was left with the strong impression that rather than give truthful responses, the applicant had invented his evidence as he testified.
The applicant added that he decided to undertake the leadership and management course after contacting his first employer, the Kenyan Fluorspar Company, which offered to give him a permanent role as the nurse in charge of a facility in a rural area if he did such a course. That however contradicted the evidence he had given earlier in the hearing when I asked why he undertook the leadership and management course. Earlier the applicant had told me that he did the leadership and management course on the advice of colleagues at AMPATH and Mr Koech who said he would be better placed to get a job with AMPATH if he had a leadership and management qualification. When I noted that contradiction in his evidence the applicant said he was confused. He said it was at the end of 2017 that he had contacted AMPATH and was advised to get nursing experience (in Australia) and a mental health qualification. I do not accept that the applicant was confused. I had questioned the applicant at some length earlier in the hearing about why he undertook the leadership and management course. I do not believe he could have been confused about whether he undertook that course upon the advice of Mr Koech and colleagues at AMPATH or his first employer. I do not believe the applicant had given a truthful or credible account of his reasons for undertaking the project management and leadership and management courses.
The absence of credible reasons for undertaking the project management and leadership and management courses and the length of time the applicant has spent in Australia indicate that the applicant is using the student visa to maintain ongoing residence in Australia.
Having considered the evidence before me about the applicant’s circumstances and the factors in Direction No.69 relevant to him, I have concluded that the applicant does not have a genuine intention to undertake the diploma in mental health course he is enrolled in for the purpose of gaining employment in Kenya as he has claimed. Instead I have concluded that the applicant has applied for the student visa and enrolled in the course with the intention of using the student visa scheme to maintain ongoing residence in Australia. I am thus not satisfied that the applicant intends genuinely to stay in Australia temporarily. He therefore does not meet cl.500.212(a).
Conclusion on cl.500.212
As the applicant does not meet cl.500.212(a), I am not satisfied that he is a genuine applicant for entry and stay as a student as required by cl.500.212. The criteria for the grant of a Subclass 500 (Student) visa are therefore not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Hence, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mila Foster
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.
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