Pali (Migration)

[2021] AATA 5395

Pali (Migration) [2021] AATA 5395 (7 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kristian Pali

CASE NUMBER:  2000943

HOME AFFAIRS REFERENCE(S):          BCC/2019-5163093

MEMBER:Damian Creedon

DATE:7 November 2021

PLACE OF DECISION:  Perth

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

Statement made on 07 November 2021 at 4:24pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – late response to s.359(2) invitation – Direction No 69 – GTE Statement – plans for future career – relevance of the proposed course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 8 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 October 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. On 15 July 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to the Tribunal in writing about the course(s) of study he is undertaking and his entry and stay in Australia as a student. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing within the prescribed period, ending 29 July 2021, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant requested an extension of time on 26 July 2021 and the Tribunal granted an extension until 12 August 2021.  The applicant provided the information outside of the period granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. In these circumstances, the Tribunal has decided to proceed to a decision. The Tribunal has had regard to all the information before it, including the information provided to the Tribunal by the applicant, and the information previously provided by the applicant to the Department.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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?

1. 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 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.

2. 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.

3. In Kumar v Minister for Immigration and Border Protection[1] the Full Court of the Federal Court held that the Direction requires that, in reaching the state of satisfaction required by cl 500.212(a), the decision maker should turn his or her attention to each factor during the decision-making process and consider whether and how that factor should be brought to bear in reaching that decision.[2]  The Court went on to note that:

   [The Direction] does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case.  Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons.[3]

   [1] [2020] FCAFC 16 (24 February 2020).

   [2] Kumar, Para [82].

   [3] Kumar, Para [96].

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 28-year-old Albanian-born Greek national who arrived in Australia on 20 July 2019 as the holder of a Visitor visa. 

3. Accompanying the applicant’s Student visa application to the Department was a written statement dated 6 November 2019 addressing the ‘genuine temporary entrant’ criterion (GTE Statement).  The GTE Statement may be summarised as follows:

   a.During his visit to Australia the applicant spoke with his family in Greece and discussed his circumstances in his home country including the difficulty in obtaining “well paid” employment there.  He states:

   It was during these discussions that they told me that if I wanted to study English in Australia that they would assist me financially.

   b.The offer of financial assistance came from the applicant’s parents, and from one his sisters who lives in the United Kingdom.

   c.He states that he did “some research” and settled upon a particular college to complete his proposed study.  He states that he arrived at this decision after meeting with the college’s teachers who impressed him “with their enthusiasm and professional manner”; he states:

   Studying in an English speaking environment will assist to improve my English as I will be able to practice it on a daily basis for use in my future employment.

   d.The applicant states his belief that Australia has “internationally recognised” courses and education providers, and that the multicultural society here will allow him to meet people form “a range of different backgrounds”.

   e.He further states his belief that studying in Australia will assist him to “strengthen” his skills and employment opportunities across Europe but:

   …especially the UK or Germany where wages are much higher than those in Greece.

   f.He states his intention to find part-tine work in the hospitality industry in Australia to enhance his “skills and experience” to assist in finding better paid work.

4. The Tribunal has also read and had regard to a number of documents submitted by the applicant to the Department in support of his application, including the following:

   a.the applicant’s birth certificate;

   b.the applicant’s “Family Household Booklet”;

   c.the applicant’s passport; and

   d.the applicant’s Student visa application form submitted on 15 October 2019 (visa application).

5. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that he is presently enrolled in the following course:

Course Name	Date Commenced	Proposed Date of Completion
General English[4]	16/08/2021	28/08/2022

[4] The applicant provided the Tribunal with a copy of the CoE for this course.

1. PRISMS also records that the applicant was enrolled in a similar course of General English due to commence in October 2019, but which he did not complete.  He states that his intentions in this regard were impacted by the COVID-19 pandemic.  The Tribunal accepts this explanation and does not weigh the non-completion of the course against the applicant.

Analysis and findings

1. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

2. The applicant has been resident in Australia for over two years, since July 2019.  He came onshore holding a Visitor visa before making the application for the Student visa which is the subject of this review.  In respect of his decision to study abroad, in his GTE Statement the applicant claims, in essence, that the international reputation and quality of Australian qualifications were significant factors in his decision, as well as the “multicultural society” here.  The applicant claims to have formed positive impressions of the education system from the college teachers that he met with, and he emphasises the benefits to him of studying in an English-speaking country.  On balance, although they are somewhat generic, these reasons suggest a rational and reasonable motive for an international student to choose to study in Australia and they do not cause the Tribunal concern.  

3. The applicant’s evidence to the Department is that he completed his secondary education in Greece in June 2012, before undertaking a ‘Motor Technicians’ course there between September 2012 and June 2013. 

4. In his GTE Statement the applicant refers in generalised terms to two career paths that may be open to him, and his prospects enhanced, through obtaining English language qualifications: firstly, he makes a generalised claim that he will seek employment in the “UK or Germany” where wages are “higher than Greece”.  This “generalised” career pathway is repeated in the applicant’s s.359(2) response to the Tribunal where he states (uncorrected):

   With English language skills will give opportunity to apply for work in countries like UK, Germany where wages are higher than Greece.

   And later:

   As stated previously I will be able to seek better paid employment with English language skills in countries outside Greece.

5. The second, and more specific, career pathway he claims will be open to him, is in the hospitality industry; in his GTE Statement he states:

   cruise ships starting of [sic] as either a waiter or kitchen hand and eventually work my way up to become a cook.

6. He states that such work is “higher paid” than in “local restaurants” and that English language skills will give him an advantage over other applicants and may, in some instances, be a pre-requisite for this type of employment.

7. The “hospitality” career path is also referred to in his visa application, where it is put that that applicant:

   WILL SEEK TO WORK IN HOSPITALITY ON HIS RETURN TO GREECE AT THE COMPLETION OF HIS STUDIES WHERE HIS ENGLISH LANGUAGE SKILLS AND AUSTRALIAN WORK EXPERIENCE SHOULD GIVE HIM AN ADVANTAGE WHEN APPLYING FOR THE BETTER PAID JOBS IN TOURIST RESORTS, HOTELS OR CRUISE SHIPS WHERE WAGES ARE HIGHER.

8. The Tribunal accepts that there may be some overlap between these two broad pathways. 

9. Of concern to the Tribunal, however, is that the applicant does not provide any corroborating evidence, nor any meaningful particulars of his intentions to suggest that these claims are the product of a considered career pathway with genuine prospects.  Overall, the Tribunal considers this evidence vague, generic and unpersuasive.

10. The Tribunal also notes that, in his evidence to the Department, the applicant states his most recent work experience as:

    a.an assistant technician in a private ‘air-conditioning’ business in Greece between January 2017 and January 2018;

    b.a ‘private’ completing national service in the Greek army between March and December 2018;

    c.a construction labourer in Kingston-upon-Thames, United Kingdom between January and March 2019; and

    d.a ‘kitchen hand’ in a ‘pub’ in Birmingham, United Kingdom between March and July 2019.

11. The applicant then travelled to Australia in July 2019.

12. Of concern to the Tribunal, in this context, is that the applicant provides no evidence of having researched his study options in the United Kingdom: an English-speaking country much closer to Greece, with equivalent educational standards to Australia; and a country where he has familial support (see further below), where he was already employed in the hospitality industry, and where (among other countries) he claims that his employment prospects would be enhanced by his studies in Australia, and where he intends to apply for work.  The Tribunal does not find this coherent or plausible. 

13. The Tribunal accepts that, having lived in Australia for some two years, the applicant has sufficient knowledge of living here.  There is no evidence or information before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.

14. It appears from the information supplied by the applicant in his application to the department that his parents and brother reside in Greece and his two sisters reside in the United Kingdom.  The Tribunal accepts that the applicant’s personal ties, particularly to his parents, provide some incentive for him to return to his home country and it places some small weight on this factor in the applicant’s favour.

15. There is no evidence before the Tribunal that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  In his application to the Department the applicant states that he has travelled to the United Kingdom, Albania, and Bulgaria.

16. The Tribunal notes no concerns from the Department in respect of the applicant’s conduct as a temporary entrant onshore and weighs this factor in the applicant’s favour.  There is nothing before the Tribunal to indicate that the applicant has experienced visa refusal or immigration issues in any other country.

17. Overall, although the academic level of the applicant’s proposed course is consistent with his prior education, the Tribunal finds that the applicant has failed to demonstrate how his proposed course of study will enable him to obtain employment or improve his employment prospects in Greece, or that his proposed study is relevant to his future employment either in Greece or a third country. 

18. The applicant’s claims in respect of his plans for his future career are vague and uncorroborated and he has failed to provide any convincing evidence as to why he decided to travel to Australia to undertake study here when he was already working in his prospective industry in the United Kingdom, a country that meets his criteria as “English speaking” with equivalent standards and multicultural tolerance, and where he has the support of his sister whom, he states, he intends to rely upon for financial support for his studies in Australia.

19. The little weight the Tribunal places on the absence of civil unrest or military service commitments in the applicant’s home country, and his personal ties there, together with his compliance with previous visas and positive immigration history, is insufficient to dispel the Tribunal’s conclusions in this respect. 

20. 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).

21. 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.

22. 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

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

Damian Creedon
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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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;

   d.whether 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.