Muhammad (Migration)

Muhammad (Migration) [2020] AATA 16 (2 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Cholid Muhammad
CASE NUMBER:  1805305
HOME AFFAIRS REFERENCE(S):          BCC2017/4903508
MEMBER:Vanessa Plain
DATE:2 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 02 January 2020 at 9:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – enrolment in eight courses over ten years – application for permanent residency shows intention to stay permanently – inconsistent evidence about application or expression of interest in permanent residency – family ties to home country – four short trips to home country – no evidence of economic ties or employment prospects – value of current course to future employment – incentives to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 Home Affairs on 23 February 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 December 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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).
The applicant appeared before the Tribunal on 18 December 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay as a student in Australia.
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Delegate’s decision record reveals that the applicant arrived in Australia in 26 September 2009 on a student subclass TU 572 visa granted offshore on 12 August 2009. Since that time, the applicant has enrolled in eight different vocational courses as follows:
·General English (Beginner to Advanced)
·Diploma of Management
·Advanced Diploma of Management
·Certificate IV in Information Technology Networking
·Diploma in Information Technology Networking
·Advanced Diploma of Network Security
·Bachelor in Information Technology Network Security
·Advanced Diploma of Leadership and Management
The applicant is currently enrolled in an Advanced Diploma of Leadership and Management at AH and B College. At the hearing the applicant produced a COE which demonstrated that the course had completed 11 December 2019. The applicant contended that he was still enrolled in the course and has two more subjects to complete. The Tribunal explained to the applicant that because the COE did not demonstrate that the applicant was currently enrolled at the time of hearing, there was not sufficient evidence before the Tribunal that the applicant was enrolled.
In response, the applicant again informed the Tribunal that he had two more subjects to complete. He also informed the Tribunal that he has applied for a permanent residence visa and he was awaiting the outcome of that applicant. The Tribunal explained that even if the applicant had produced a COE demonstrating that he was enrolled in a course presently, his acknowledgment that he had applied for permanent residency weighed heavily against any suggestion that he was here was in Australia temporarily for the purpose of study.
The applicant said his migration agent had let him down. He said that he wanted more time to get a COE from his education provider that demonstrated he was enrolled. The Tribunal granted that request. At 11:10am the Tribunal adjourned the hearing until 12:00, to afford the applicant time to produce a valid COE.
At 12:00pm the hearing resumed. The applicant produced to the Tribunal a COE demonstrating that his Advanced Diploma of Leadership and Management was now scheduled to conclude on 23 June 2020.
At the resumed hearing, the Tribunal sought further clarification from the applicant about the status of his permanent residency application. The applicant changed his evidence. He now contended that he had not made an actual application for permanent residency, merely that he had lodged an expression of interest. The Tribunal asked when the applicant had taken that step. The applicant responded that he did so 12 months ago. The applicant stated further that he applied for permanent residency visa via the immigration website, where there is information on the relevant English leve applican’ts must possess in order to be eligible for permanent residency visas. The applicant informed the Tribunal that an applicant must have a PTE English grade of 70 to be eligible, which he has presently and which is trying to further improve presently.
The Tribunal informed the applicant that it appeared from his evidence that he had actually applied for permanent residency, rather than merely submitted an expression of interest. The Tribunal again asked the applicant directly, whether he had actually applied for a permanent residency visa and he said yes. The Tribunal said to the applicant that he was awaiting the outcome of that application presently and he said yes.
In view of the above matters, the Tribunal put to the applicant that it cannot sensibly be suggested that he is seeking to stay in Australia temporarily as a student, if he has applied to be a permanent residence of Australia. In response, the applicant again changed his evidence and contended that he had not applied, that he had merely expressed an interest in permanent residency.
Due to the several occasions on which the applicant changed his evidence as set out above, the Tribunal finds that the applicant’s evidence is not reliable. What is clear, at the very minimum, is that the applicant has expressed an intention to remain in Australia on a permanent basis, by lodging documents with the department of immigration to that effect, 12 months ago. Whether those documents are merely an expression of interest, or an actual application for permanent residency is immaterial, because this conduct by the applicant is prima facie evidence that the applicant does not intend to stay in Australia temporarily for the purpose of being a student.
The applicant contended that he wishes to return to his home country. The Tribunal does not accept that assertion as credible, when weighed against the fact that the applicant has at the very least, lodged documents expressing an interest in a permanent residency visa and been here studying at least 8 inexpensive and short vocational courses in Australia since 2009. Further, since being onshore for more than 10 years, the applicant has only returned home on 4 separate occasions for a period of approximately 30 days each time. These facts, when considered in their totality, strongly suggest that the applicant is utilising the student migration visa system to live in Australia on a permanent basis.
The applicant submitted a GTE statement, Response to Request for Information and various academic documents in support of his review application. The Tribunal has had regard to the matters contained in all these documents. The Tribunal notes that the applicant has passed many courses and asserts in his GTE statement that he has been a good student who studies hard to achieve good results and is a genuine student.
The Tribunal has had regard to other relevant factors set out in Direction 69.
The applicant asserts there are no similar courses to the Advanced Diploma of Leadership and Management in Indonesia. His entire family reside over in Indonesia. There is no evidence of any economic ties to Indonesia, nor any employment prospects upon return there.
The Tribunal finds the applicant has not provided any reasonably objective level of research into the availability of course providers in Indonesia, nor does he have strong incentives to return to Indonesia, demonstrated by the fact he does not have any economic ties to Indonesia and he has only returned to visit his family 4 times in over a decade.
As to the applicant’s circumstances in Australia, the applicant contends that he found out about his course provider through friends, that he volunteers at his local mosque and that he works as a casual driver.
The Tribunal finds that the applicant has not demonstrated any significant research into his course provider in Australia, has reasonable ties to the community here by virtue of his volunteer work at his local mosque and is earning an income, albeit casually, as an uber driver. These matters provide the applicant with an incentive to stay in Australia on a more permanent basis.
The applicant contends that upon completion of his studies he is hoping to work in network security or open his own IT support company in his home country.
The Tribunal finds that the applicant has not demonstrated the value of his current course outweighs the living costs and tuition fees for the course. The Tribunal is of the view that the applicant has sufficient skills, demonstrated by the qualifications he already holds, to return to Indonesia and work in the IT field. However, the Tribunal cannot be satisfied that it is the intention of the applicant to return to Indonesia on account of the matters set out above, particularly in view of the applicant’s expression of interest in, or application for, a permanent residency visa for residency in Australia.
On the basis of the evidence set out above, the Tribunal is satisfied that the applicant is maintaining enrolment in a series of short courses and expressing an interest in permanent residency for the purpose of circumventing the intention of the migration program. The Tribunal finds, based on the applicant’s admissions, that he desires to stay in Australia permanently and therefore cannot be satisfied that he is a genuine temporary entrant to Australia for the purpose of undertaking full time study.
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).
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Vanessa Plain
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.

[2020] AATA 16

2 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction