Mosbey (Migration) - [2019] AATA 6910

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 affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 376, 395
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mosbey (Migration)

Details

AGLC: Mosbey (Migration) [2019] AATA 6910
Case: [2019] AATA 6910
Decision Date: 17 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to refuse a Subclass 500 (Student) visa to the applicant, a 33-year-old Kenyan national. The applicant had previously completed a Bachelor of Science in Nursing in Kenya and several vocational courses in Australia, including Certificates III in Aged Care and Disability, a Certificate IV in Project Management Practice, and a Diploma of Project Management. He applied for an Advanced Diploma of Leadership and Management. The Department had also previously cancelled his bridging visa, though this decision was later set aside by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the genuine temporary entrant (GTE) criterion for the Subclass 500 visa, as stipulated by clause 500.212(a) of the Migration Regulations 1994 and guided by Direction No. 69. This criterion requires the applicant to demonstrate a genuine intention to temporarily enter and remain in Australia for the purpose of study. The Tribunal was required to consider the applicant's circumstances in his home country and in Australia, the value of the proposed course to his future, and his immigration history.

The Tribunal considered various factors in its assessment. The applicant's study pathway, moving from nursing to project management and then leadership and management, raised questions about its consistency with his previous education and potential career progression in his home country. Furthermore, the applicant had not provided evidence of his GTE statement or supporting documents with his initial application. Adverse information was received anonymously, alleging the applicant was willing to do anything for permanent residency, wished to bring his children to Australia, and had been working without work rights. Crucially, the applicant did not respond to the Tribunal's invitation to comment on this adverse information. The Tribunal noted the applicant's de facto relationship with an Australian citizen, his role as a father figure to her children, and their child together, as well as his own children residing in Kenya.

Ultimately, the Tribunal was not satisfied that the applicant was a genuine temporary entrant. The lack of a satisfactory explanation for his study choices, the failure to address adverse information, and the presence of factors suggesting a stronger incentive to remain in Australia than to return home led to the conclusion that the GTE criterion was not met. Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 marriedc.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

Decision

Reasons for decision

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 FosterMemberAttachment – Direction No.69DIRECTION 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 2016Peter DuttonMinister for Immigration and Border ProtectionNote: 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 - PreliminaryName of DirectionThis 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.CommencementThis Direction commences on 1 July 2016.InterpretationAct 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) visaStudent Guardian visa means a Subclass 590 (Student Guardian) visa.ApplicationThis 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.PreambleThe 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; andb.the applicant’s immigration history; andc.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; andd.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 temporarilyPart 2 of Direction No. 69 - DirectionsAssessing the genuine temporary entrant criterion1.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; andb.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; andd.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 circumstances6.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 country9.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; ande.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 Australia11.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; ande.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 future12.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; andb.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; andc.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 history13.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; andii.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; andiv.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-complianceIf the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant15.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 matters16.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.

Ratio Decidendi

Legal Principle Established

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