Muselmani (Migration)

[2021] AATA 891

Muselmani (Migration) [2021] AATA 891 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamad Muselmani

CASE NUMBER:  1905666

HOME AFFAIRS REFERENCE(S):          BCC2018/5983000

MEMBER:Elizabeth Tueno

DATE:21 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 January 2021 at 4:55pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– in Australia for a long period time– genuine temporary entrant criterion not met–an economic incentive to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 January 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant met the genuine temporary entrant requirements for the grant of a student visa.

4. The applicant appeared before the Tribunal on 12 October 2020 by telephone due to the Covid-19 restrictions to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent, although the agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 intends genuinely to stay in Australia temporarily.

7. 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?

8. 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.

9. 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.

10. The Tribunal has had regard to the applicant oral evidence given at the hearing, the documents submitted by the applicant and also to the contents of the Department’s file. 

11. The applicant is a 32 year old man from Lebanon.  He arrived in Australia 8 November 2008 on a student visa in the vocational education stream to study an English course and then a Diploma of Business.  Since then, he has held a further two student visas until 2014 when he was granted a subclass 457 temporary skilled worker visa which remained valid until January 2019.  At the expiration of this work visa, the applicant applied for this student visa.  Between 2008 to 2014, when the applicant held a student visa, the applicant completed a Certificate II in Information Technology (2010), a Diploma of Business (2010) and a Diploma of Management (2011).  In 2011, he was also enrolled in a Bachelor of Medical Science but did not complete this course. 

12. At the time of lodging the application for this student visa, the applicant was enrolled in an Advanced Diploma of Leadership and Management from 14 January 2019 to 14 June 2020 and subsequently this enrolment was extended to 5 September 2020 and then to 29 September 2020.  The applicant provided the Tribunal with evidence that he is currently enrolled in a Certificate IV in Marketing and Communication, which commenced on 12 October 2020 and will and on 10 October 2021, and also a Diploma of Marketing and Communication, which will commence on 8 November 2021 and end on 6 November 2022 (“the proposed courses”).

13. The applicant said that he had looked at studying the Advanced Diploma of Leadership and Management in Lebanon however “knowing the quality of education in Australia I find it best to complete it in Australia.  I find that Australia best suits my needs since I am now used to the study system”.  In his completed s.359(2) questionnaire, the applicant also referred to the fact that courses in Lebanon are not taught in English.  The Tribunal considers these statement applies just as easily to the proposed courses.  The Tribunal understands the applicant’s reasons for not studying the proposed courses (or similar courses) in his home country because of the quality of education in Australia, he has become accustomed to the Australian education system and because the courses in Lebanon are not taught in English.  The Tribunal does not consider these to be sound reasons for not undertaking the proposed courses in his home country.  Whilst the applicant was born in Kuwait, Iraq, the applicant grew up in Lebanon and went to school there.  He even commenced a Bachelor of Science there just prior to him coming to Australia.  Arguably, the applicant was accustomed to study in Lebanon before coming here.  And there was no evidence that the Lebanese education system was lacking in anyway or that there were no similar courses to the proposed courses taught there.  There is also no evidence that the applicant needs to study the proposed courses in English for the purpose of finding work or any other reason.

14. The Tribunal is also concerned about the lack of personal ties to the applicant’s home country.  While the applicant’s parents, brother and sister all continue to live in Lebanon, he also has a sister and brother and Uncle living in Kuwait, where the applicant was born.  The applicant has even returned to Lebanon for four weeks at a time to visit family in 2010, 2012, 2013 and 2014.  However, the applicant stated at the hearing that returning to Lebanon is not an option for him anymore.  Accordingly, the Tribunal does not consider that the applicant has ties to his home country that would be an incentive for him to return there. 

15. The applicant claims instead of returning to Lebanon, he will be going to Kuwait once his courses are completed.  In support of this, he says that he has family there and has been offered a job by his Uncle.  He said the job offer was originally with a construction company where his Uncle worked, and he needed to complete the Advanced Diploma in Leadership and Management because the company “is global”.  His Uncle has, since moved to a different company involving insulation and he has offered the application another job, this time in marketing.  No formal written job offer was provided to the Tribunal in support of the applicant’s claim about possible employment.  These undocumented job offers from a relative conveniently seem contingent upon the applicant completing courses in Australia.

16. While the Tribunal accepts that the applicant does have some family in Kuwait, it is concerned that these jobs are not genuine job offers given the lack of supporting evidence.  Accordingly, the Tribunal is not satisfied that the applicant’s ties to Kuwait, Iraq, are also not sufficient incentive for the applicant to travel there after the completion of the proposed courses.

17. In relation to the applicant’s economic circumstances, he had been earning around $56,000 per annum working as a contract administrator for his employer in Australia, Serenity One Apartments Pty Ltd, since 2015.  His annual living expenses total approximately $21,000 per annum, which is more than covered by his income from Serenity One Apartments Pty Ltd.  The only evidence about the assets he owns is a bank statement from the Commonwealth Bank of Australia showing that as at 7 January 2019, he held approximately $32,000 in his account with that bank.  He also stated that he owns a car valued at $40,000, which is located in Lakemba, Sydney, where is lives.  The applicant seems to have created a comfortable life for himself in Australia where he has money in savings and a car.  He has provided no evidence of owning any assets or property anywhere else.  He provided no information about the income that he could expect to receive with the purported job in Kuwait.  Based on all of this information, the Tribunal considers that the applicant’s economic circumstances would be a significant incentive for him not to return to his home country of Lebanon or even Kuwait, Iraq.

18. While the applicant said in his questionnaire response that he has no concerns about military service commitments or about any political or civil unrest in his home country, some of the evidence he gave at the hearing raises some concern.  He stated that returning to Lebanon is not an option for him.  He said that Lebanon is not a safe place and there is no option there to open a business.  He said there is a crisis “overseas”, that medicine in Lebanon is lacking and that Covid-19 is a “huge” issue there.  Taking these statement into account, the Tribunal is concerned that the current situation in Lebanon could be inducing the applicant to use the student visa to remain in Australia.

19. The applicant has now been residing in Australia on temporary visas for over 12 years.  Most recently, has had been on a temporary work visa for 4 years and during this time had been working for a construction company called Serenity One Apartments Pty Ltd as a contract administrator earning $56,000 per annum.  He said that he could have applied for permanent residency in Australia but decided not to.  He lives by himself and described his day to day activities as waking up, going to the gym and studying.  He said, “this is my life now”.  He said at the hearing that he loves the lifestyle in Australia and the opportunities here.  He also said that Australia gave him the opportunity to be who he is.  Despite the applicant’s claim that he has “nil” ties to the community in Australia, the Tribunal doubts this is the case.  He has had steady and well paying employment, he has set himself up and lives by himself.  Having spent the last 12 years living in Australia, the Tribunal considers that the applicant has made a life for himself him and despite his claim he does not intend to apply for permanent residency, it is clear that life in Australia has been good to the applicant and that he has incentive to want to remain here.  At the very least, employment is an incentive to stay here. 

20. It had been well over five years since the applicant had studied in Australia since he gave up studying the Bachelor of Medical Science in favour of commencing full time employment.   After the applicant’s four year work visa was coming to an end, the applicant applied for this student visa.  The lack of interest or need in study until the work visa came to an end suggests that the applicant is motivated in applying for this visa in order to maintain ongoing residence in Australia.  So too is the significant period of time the applicant has been residing in Australia suggestive of this.  Despite the applicant’s claim that he is studying the proposed courses in order to work in Kuwait, the Tribunal considers that applicant is, in fact, using the student visa to maintain ongoing residence in Australia and that in doing so, he  is attempting to circumvent the intentions of the migration program. 

21. The Tribunal has had regard to the value of the proposed courses to the applicant’s future.  During his time in Australia, the applicant has shown little advancement in the level of study.  The highest qualification he holds at present is a Diploma of Business and a Diploma of Management.  He attempted a Bachelor degree both in Australia and in Lebanon but did not complete these courses.  It is unclear whether the applicant ever completed the Advanced Diploma of Leadership and Management.  But assuming he did, he is now studying at a lower level having returned to a Certificate IV and Diploma course.  The Tribunal considers the applicant has shown little advancement in his studies and accordingly, the proposed courses are not at a level consistent with his current level of education.

22. As to the applicant’s plans for the future, the Tribunal was not assisted by the genuine temporary entrant submitted to it by the applicant in which he referred to having been offered employment with Alamiah Building Company in Kuwait as a team leader.  He said the company had requested he obtain the Advanced Diploma in Leadership and Management because the company “is global”.  Given the applicant is now enrolled marketing and communication courses, this information is not particularly helpful.  At the hearing, the applicant stated that it was in fact his Uncle that had provided that job offer and that his Uncle now works for a different company.  His Uncle has now offered him the option to work for this new company doing marketing.  No formal written job offer was provided to the Tribunal in support of the applicant’s claim about possible employment.

23. On the evidence before it, the Tribunal considers that the applicant’s claimed career aspirations have been tailored to fit with the applicant’s current, or then current, course selection in Australia.  The job descriptions have been vague, not supported by written offers and allegedly with a family member (who, one would think, could easily provide a letter setting out the various jobs offers).  This tailoring a career aspiration to fit around a course is not as it should be.  It suggests that the applicant does not have genuine job offers or a genuine interest in the field of study.  For this reason, the Tribunal is not convinced that the proposed courses will assist the applicant in obtaining employment or improving his employment prosects in his home country of Lebanon or a third country such as Kuwait. 

24. Marketing and Communication seems to have little to do with his most recent work in Australia as a contract administrator for Serenity One Apartments Pty Ltd.  Given the concerns set out above about the applicant’s future plans, the Tribunal cannot be satisfied that the proposed courses will be relevant to his future employment in Lebanon, Kuwait or another country. 

25. It follows that the Tribunal does not consider that qualifications from the proposed courses will have an effect on the applicant’s remuneration  in Kuwait, Lebanon or any other country compared to what he has been receiving in Australia. 

26. Lastly, the Tribunal has taken into consideration the applicant’s immigration history.  He has now been residing in Australia for 4458 days (12 years and 2 ½ months).  During this time, he has returned four times (in 2010, 2012, 2013 and 2014) to Lebanon to visit family there, spending a total of 16 weeks (112 days) there.  He said that he also visited Kuwait, Iraq, in January 2018.  The applicant claimed that he could have applied for permanent residency in Australia but decided not to.  The Tribunal is not persuaded by this assertion of the applicant as convincing evidence that he intends to remain in Australia temporarily.  His actions speak of a different intention, having spent the vast majority of the last 12 years onshore in Australia.  This is far from a temporary stay in Australia. 

27. There were no other relevant matters raised by the applicant for consideration. 

28. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a).

29. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. 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

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

    Elizabeth Tueno
    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.