Ramessur (Migration)

[2019] AATA 5973

Ramessur (Migration) [2019] AATA 5973 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satyam Ramessur

CASE NUMBER:  1719500

HOME AFFAIRS REFERENCE(S):          BCC2017/1408802

MEMBER:Frank Russo

DATE:26 September 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 26 September 2019 at 2:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – multiple visas and courses – incentives to stay or return – family ties to home country, distant relatives in Australia – one return to home country in 12 years – economic circumstances in home country and Australia – delay in enrolling in and commencing current course – value of current course to future plans – using student visas primarily to maintain residence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 Immigration and Border Protection on 16 August 2017 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 18 April 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.

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) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 7 May 2019 to give evidence and present arguments.

5. The applicant is a 34-year-old national of Mauritius. He came to Australia on 27 October 2007. He has held five Student visas, either as a primary applicant or a dependant. At the time of the hearing he was enrolled in an Advanced Diploma of Business and also held a Confirmation of Enrolment for a Bachelor of Business (Professional Accounting), which is scheduled to commence in April 2020 and scheduled to be completed by 29 October 2021.

6. The applicant was assisted in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 applicant for entry and stay as a student.

   Genuine applicant for entry and stay as a student (cl.500.212)

9. 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?

10. 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.

11. 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.

12. In addition to the application form, the applicant provided the Tribunal with a number of other documents, as follows:

    a.A s.359(2) response, attaching a GTE Statement, received by the Tribunal on 27 March 2019;

    b.An ‘interim submission’ provided by the applicant’s representative, dated 4 May 2019;

    c.Copy of flight itinerary, dated 2 September 2013;

    d.Letter from the rector of M Sangeelee State Secondary School, Mauritius, dated 29 June 2007;

    e.General Certificates of Education from Cambridge International Examinations for November 2000 and November 2001;

    f.Statement of Results for Certificate of Primary Education, issued by Mauritius Examinations Syndicate on 9 April 2004;

    g.Two Statements of Attainment issued by Milcom Communications Pty Ltd, dated 25 June 2016, and a further Statement of Attainment issued on 3 July 2016;

    h.Statement of Attainment issued by George Brown College for competencies that form part of the Advanced Diploma of Leadership and Management, dated 13 April 2017;

    i.Copy of Advanced Diploma of Leadership and Management and Record of Result, issued by George Brown College on 9 November 2018;

    j.Diploma of Business, issued by Bridge Business College, undated;

    k.Confirmation of Enrolment in the Advanced Diploma of Business at Elite Education Vocational Institute (Elite Education) from 8 April 2019 to 6 March 2020, created on 27 March 2019;

    l.Confirmation of Enrolment in the Bachelor of Business at Elite Education from 27 April 2020 to 29 October 2021, created on 1 April 2019;

    m.‘Statement of Purpose – GTE Criteria’; and

    n.Letter from the General Manager of Indian Resort & Spa Hotel, Mauritius, dated 3 February 2007.

13. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

14. The applicant gave evidence at hearing that he first arrived in Australia in 2007. At the time he was married and was a dependant of his wife, who was the primary holder of a Student visa. He told the Tribunal that he had married his wife in May 2007 and the two of them arrived in Australia in October 2007. He stated that he divorced his wife in 2012. He told the Tribunal that when he was in Mauritius he had always wanted to study, and following his divorce from his wife he decided to study Business.

15. The applicant gave evidence that prior to arriving in Australia he completed the equivalent of Year 10 high school in Mauritius. He stated that he also completed a certificate course in Hospitality Management in 2005.

16. The applicant told the Tribunal that while he was in Australia from 2007 to 2012 he worked in small goods and described his employment at that time as consisting of ‘on-call jobs’. He stated that he first decided to study after his divorce to keep himself busy and to fulfil his dreams. He stated that he always dreamed of starting his own business.

17. The applicant stated that he has been completing his studies in Australia in a progressive manner. He stated that he started studying Business with a Diploma of Business at Bridge Business College. Following this he enrolled in the Advanced Diploma of Accounting, also at Bridge Business College, but stated that he only completed the Diploma of Accounting because the college cancelled the advanced diploma course.

18. The applicant gave evidence that he next enrolled in the Advanced Diploma in Leadership and Management at George Brown College. He stated that after that he has held a Bridging visa, which has made it very difficult for him to obtain enrolments with colleges. The applicant told the Tribunal that he had a discussion with his migration agent, who suggested he do a Bachelor level degree. He also stated that his agent led him to enrol at a ‘proper institute’.

19. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments or wished to respond in relation to the information contained in his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

20. The applicant requested five minutes to discuss the contents of his PRISMS enrolment record with his representative. The Tribunal granted this request.

21. According to the applicant’s PRISMS record, he has been enrolled in the following courses:

    a.General English (Beginner to Advanced), in which he was enrolled from 24 January 2011 to 19 August 2011. Although the status of the course is recorded as ‘Finished’, it also records a variation reason of ‘Unsatisfactory attendance’ on 28 April 2011;

    b.Two enrolments in Certificate II in Business, in 2011 and 2013, both of which record ‘Finished’ as the status;

    c.Certificates III and IV in Business and a Diploma of Business, from 2011 to 2013, all of which are recorded as ‘Finished’;

    d.Certificate III in Accounts Administration, which is recorded as cancelled on 29 January 2014 for ‘Non-payment of fees’;

    e.Certificate IV in Accounting, which is recorded as finished in 2015;

    f.Diploma of Accounting, which is recorded as finished in 2016;

    g.Advanced Diploma of Accounting, which is recorded as cancelled on 3 April 2014 due to ‘Provider unable to deliver course’;

    h.Advanced Diploma of Leadership and Management, with enrolment from 29 February 2016 to 25 February 2018, which is recorded as finished;

    i.Advanced Diploma of Business, with enrolment from 8 April 2019 to 6 March 2020, with a status of ‘Studying’; and

    j.Bachelor of Business (Professional Accounting), with enrolment from 17 April 2020 to 29 October 2021, with a status of ‘Approved’.

22. The applicant told the Tribunal that he never commenced the Diploma of Hospitality as he decided to enrol in Business instead. The Tribunal accepts this. The Tribunal also accepts the applicant’s evidence that he did not proceed with the Advanced Diploma of Accounting because the course provider no longer offered this course, and the Tribunal accepts this as well.

23. In addition to the evidence provided by the applicant at the hearing, the applicant also provided the Tribunal with copies of a number of certificates awarded for his studies in Australia. Based on his oral evidence and the documentary evidence before the Tribunal, the Tribunal is satisfied that the applicant has been awarded the following vocational qualifications since 2011:

    a.Diploma of Business (2013) (including various certificates in Business leading towards the Diploma);

    b.Diploma of Accounting (2016); and

    c.Advanced Diploma of Leadership and Management (2018).

24. The Tribunal notes that the visa application currently under review was in respect of the applicant’s enrolment in the Advanced Diploma of Leadership and Management, which the applicant completed and was awarded in February 2018. The applicant has subsequently enrolled in the Advanced Diploma of Business, which he was enrolled in from 8 April 2019 and is due to complete on 6 March 2020. The applicant also has a Confirmation of Enrolment for a Bachelor of Business, commencing on 27 April 2020, with an indicative end date of 29 October 2021.

25. The Tribunal noted the gap of approximately 13 months from the applicant’s completion of the Advanced Diploma of Leadership and Management until he enrolled in the Advanced Diploma of Business and questioned the applicant as to when he decided to apply for entry into these courses. The applicant told the Tribunal that he had decided in 2018, and that at the time he had contacted a few universities by telephone with a view to enrolling in a Bachelor level course, but when he told them that he holds a Bridging visa, none were willing to offer him enrolment. The applicant stated that he also undertook some online searches of potential course providers. The Tribunal questioned the applicant as to whether he had any documentary evidence of enquiries he had made to course providers in 2018. The applicant told the Tribunal that he did not have any documentary evidence of such enquiries as all of his enquiries were made by telephone. When asked whether he remembered which institutions he had contacted, he stated that he contacted the Melbourne Institute, and stated that this prover told him he would not gain admission because he holds a Bridging visa. He stated that he contacted George Brown College, but was informed that they do not offer courses at a higher level than the advanced diploma level. He stated that he was unable to remember the names of other institutions which he contacted.

26. The applicant confirmed that he had read and understood the delegate’s decision. The Tribunal noted that one of the concerns raised in the delegate’s decision is the applicant’s enrolment in a range of courses since 2011, with his PRISMS enrolment record indicating that he has not progressed further than the Advanced Diploma level during his time in Australia. The applicant responded that he believes this is not his fault, as he was advised by his previous agent to ‘go for’ the Advanced Diploma of Leadership and Management, rather than for a Bachelor level degree. He gave evidence that he had told his agent that he needed to go for a Bachelor level degree, but his agent instead guided him to go for the Advanced Diploma of Leadership and Management and to go for sponsorship. He stated that his former agent had received a formal warning in relation to his practices as an agent. He stated that he went to his former agent to obtain his original documents and was handed someone else’s Confirmation of Enrolment. The applicant also stated at hearing that he had asked his current agent to find him an enrolment in a Bachelor level course, but his existing level of education didn’t allow such entry, hence he had to enrol in courses in a progressive manner, enrolling in a further Advanced Diploma course first.

27. When asked the reasons why he wished to undertake his studies in Australia, the applicant stated that Australian degrees are more recognised worldwide and will offer more opportunities to obtain employment worldwide. The applicant also stated that Bachelor courses are available in Mauritius, however they are basic courses. He stated that it might also take longer to obtain admission to those courses. The Tribunal accepts that the applicant may have reasonable motives for not undertaking the study in his home country of Mauritius, accepting that although similar courses exist in Mauritius, it is a country of approximately 1.3 million people, and options for study may be more limited than those available in Australia.[1]

    [1] Mauritius country information, Department of Foreign Affairs and Trade website, accessed 24 September 2019.

28. The Tribunal accepts that the applicant has personal ties to Mauritius. These include his mother, four brothers and an uncle. The applicant gave evidence that his father passed away in April 2013. The applicant stated that he keeps in contact with his family by telephone on weekends, and his mother will call him a few times during the week.

29. As to his ties to Australia, the applicant stated that he has distant relatives in Australia. He mentioned his mother’s sister’s cousin’s son. There is no evidence to suggest the applicant has close relatives in Australia or is currently in a relationship. The applicant stated that he does not own any property in Australia other than a car valued at approximately $33,000.

30. In terms of his economic circumstances, the applicant stated that his father owned a small textile factory, which manufactures cotton shirts. He stated that he wishes to return to Mauritius to expand this business. The applicant stated that his older brother is currently running the factory. In addition, he told the Tribunal that he owns a house of his own, which became his after his in 2004. He stated that he lived in this house prior to arriving in Australia and the house is currently vacant. He stated that his father also owned parcels of land and that he will receive a share of this land. The applicant gave evidence that prior to arriving in Australia he had worked in hotels in Mauritius for nearly four years.

31. The applicant stated that at the time of the hearing he was working in hospitality, providing catering in venues. He stated that whether he works depends on whether they need him. When asked how much work he averages per week he stated that he works maybe 15 hours per week and earns approximately $300 per week after tax. He stated that his mother continues to support him financially with his studies and that he lives in a boarding house where he rents a room.

32. Whilst the Tribunal notes the applicant has personal ties and other incentives, such as a property in his name and his father’s business, which may serve as an incentive for him to return home following the completion of his studies, the Tribunal has concerns that since the applicant’s arrival in Australia in 2007, he has returned to Mauritius only on one occasion. The Tribunal raised these concerns with the applicant and gave him an opportunity to respond. The applicant confirmed at hearing that he returned to Mauritius in 2014 for one month in order to perform funeral rites following his father’s death in April 2013. The Tribunal is concerned that despite the applicant continuing to have personal ties to Mauritius, the amount of time he has spent in Australia compared to the minimal time he has returned to Mauritius since his arrival, suggest his ties to his home country may not provide an incentive for him to return to his home country on conclusion of his current enrolments.

1. There is insufficient information regarding the applicant’s circumstances in his home country relative to the circumstances of others in that country, and the Tribunal makes no adverse findings in relation to this consideration.

2. There is no evidence of any military service commitments that would act as an incentive for the applicant to remain in Australia. When asked by the Tribunal whether there is any political or civil unrest in his home country which may affect his decision to return, he stated that there is corruption in his home country. The Tribunal does not find the applicant’s response of concern in relation to the consideration at cl.9(e) of Direction No.69, as there is nothing to indicate that his expressed concern is a motivation for applying for a Student visa, and the Tribunal makes no adverse findings in relation to that consideration.

3. As to whether the applicant has entered into a relationship of concern for a successful Student visa outcome, the applicant gave evidence that he is not in a relationship. The Tribunal noted at the hearing that information contained at folio 13 of the Tribunal file was provided by the Department with a non-disclosure certificate preventing the provision of the documents to the applicant.

4. Section 375A provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review.

5. The tribunal has considered the validity of certificate, which was issued by the Department under Sections 375A. The Tribunal is satisfied that the Department has established a credible reason why access to the information at folios 13 of the Tribunal’s file are covered by the 375A certificate, dated 29 October 2018, would be contrary to the public interest, as the particulars of the information includes information which may contain personal identifiers and personal information. The Tribunal finds the certificate issued under Section 375A of the Act is valid. The Tribunal determined it was appropriate to nonetheless provide applicant with the essence of the information covered by this certificate. The Tribunal advised the applicant about the information contained at folios 13, which included allegations that the applicant had entered a relationship with a woman for the purpose of securing a visa, in addition to allegations that he was working in excess of the 40 hours per fortnight condition attached to his visa, was evading his taxation obligations and had not been attending college. The Tribunal addresses the information regarding the applicant’s entry into a relationship to secure a visa outcome at this point and addresses the other information later in these reasons, under its consideration of the applicant’s immigration history.

6. The applicant gave evidence at the hearing that he is not in a relationship. He gave evidence that his marriage ended in 2012. He gave evidence that he was in a relationship from 2017 to 2018 with a woman who he stated is an Australian citizen of Indian background. He told the Tribunal that this relationship ended because she was a single mother and things did not work out with her children.

7. The applicant’s representative made submissions that the applicant does not have the money to pay a woman to enter a relationship for the purpose of securing a visa. He also submitted that if such an allegation were true, the applicant would have encouraged the woman he had been in a relationship with to stay.

8. There is nothing before the Tribunal to indicate that the applicant is currently in a relationship. The Tribunal also notes that the applicant is the sole applicant for the current visa application and there is no suggestion that he has entered into a relationship of concern for the purpose of the Student visa application currently under review. The Tribunal is satisfied that the applicant is not currently in a partnership and the information contained in folio 13 of the Tribunal’s file is not relevant to his Student visa application. The Tribunal therefore makes no adverse findings with respect to cl.11(d) of Direction No.69.

9. As to the value of the courses the applicant is currently enrolled in, he stated at the hearing that the quality of the education in Australia will assist him, and that the education system in Australia is the best worldwide. The applicant makes similar statements in his GTE Statement provided to the Tribunal, which mentions internationally accredited qualifications.

10. As to why he chose to study at Elite Australia, the applicant stated that he chose this education provider as they have been helpful and they have a good way of teaching. At the time of the hearing the applicant had attended the college for 6 weeks. When asked about any assignments which he had undertaken, he stated that he was ‘still going on’ with his assignments. When asked further about his reasons for choosing his education provider, the applicant stated the college was recommended by his agent. He gave evidence that he attends the college two times per week. When asked how long he attends, he stated that this depends on the teacher. He stated that most of the subjects will involve a credit transfer as he undertook similar subjects in the Advanced Diploma of Leadership and Management, but he won’t know how many credits he can obtain until he has spoken to teachers about the course content. When questioned further about this, the applicant stated that he was currently attending sessions with teachers and the college was working on documents regarding the proper subjects to give him. He stated that he has already done most of the subjects. He stated that he will find out from his college whether he needs to do the whole Advanced Diploma of if he can go for the Bachelor degree. This raises concerns for the Tribunal about the value of the applicant’s current course to his future, particularly when on his own evidence there is significant overlap between his current course and qualifications he has already obtained. The Tribunal considers that the applicant’s current study plans are likely to offer only incremental value on top of the studies which he has already completed. The applicant’s evidence also raises concerns with respect to his knowledge of the education provider and the level of research conducted into his course of study (cl.11(e) of Direction No.69).

11. The applicant stated that his courses of study will assist him to expand his father’s textile factory, which is currently being run by his older brother. When asked whether he has any plans for the future of the business, he stated that his brother is running the business at the same level it was operated at in the past, but he wishes to expand it. The Tribunal notes the applicant was unable to indicate how his current studies would assist him with the expansion of this business and why they are relevant, which raises concern as to whether the applicant is undertaking the course because of genuine intentions. The Tribunal has also considered the claims the applicant has made in his GTE Statement to the Tribunal as to the value of his course to his future. He states that studying Business will give him opportunities to work in a range of fields, such as marketing, human resources and customer care. He states that Business graduates are decision makers and problem solvers. He states he can find a job in junior or middle level management of a company, and that he has chosen a progressive pathway which can lead to a Bachelor of Business or a Masters. He mentions his father’s company and lists jobs which he could obtain elsewhere, such as Administration Manager, Operations Manager or jobs in the public sector. He states that he has dreams of becoming a management professional. The Tribunal considers the statements the applicant has made in his GTE Statement as to the value of his studies to be of a general nature.

12. While the applicant has now enrolled in a Bachelor degree course for the first time since he commenced his studies in 2011, given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the Student visa may be used primarily to circumvent the intentions of the migration programme and to maintain ongoing residence (clauses 11(b) and (c) and 14(b)(iii)).

13. At the hearing the applicant’s representative submitted that the applicant may be able to finish his Advanced Diploma course earlier if he is able to gain course credits, and then proceed to the Bachelor of Business. The Tribunal has considered this, however given the applicant’s lengthy stay in Australia to date on temporary Student visas and his evidence regarding his circumstances and immigration history, the Tribunal is concerned the applicant would have little incentive to return to Mauritius at an earlier date given he has Confirmations of Enrolment which extend his studies until October 2021.

14. There is insufficient information regarding the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study, and the Tribunal makes no adverse findings in relation to cl.12(c) of Direction No.69.

15. The applicant’s immigration history refers to both his travel and visa history. The applicant gave evidence that the current visa application is the only application which has been refused and that he has no other outstanding visa applications. The Tribunal notes that the applicant first arrived in Australia on 27 October 2007. The applicant confirmed at hearing that in the over 11 years since his arrival in Australia, he has returned to Mauritius only on one occasion, in 2014. He was granted his first Student visa in 2007 and since then has been granted a further five Student visas. The most recent Student visa which he was granted was granted on 16 May 2013, for which he was the primary applicant. Since he commenced his studies in 2011, the applicant has completed a course in English, two Diploma courses and an Advanced Diploma. The Tribunal notes again that the applicant has now completed the Advanced Diploma course which was the subject of the visa application currently under review. The applicant has now enrolled in a further Advanced Diploma course, as well as a Bachelor level course which is not scheduled to commence until April 2020, approximately seven months from the date of this decision. This course is scheduled to be completed by 29 October 2021, which would further extend the applicant’s stay in Australia on Student visas and associated Bridging visas to a period of just over 14 years. This raises concerns that the applicant is utilising the visa programme to circumvent the intentions of the migration programme and to maintain ongoing residence (clauses 11(b) and (c).

16. The Tribunal places weight on the applicant’s circumstances that indicate the Student visa is intended primarily for maintaining residence in Australia, including the amount of time the applicant has remained onshore, and his studies to date being at the vocational level, gaining qualifications no higher than an Advanced Diploma during the time he has studied (cl.14(b)(iii). While the Tribunal notes the applicant is now enrolled in a Bachelor level course, the Tribunal notes this is not scheduled to commence until April 2020. The Tribunal has considered the applicant’s claims that he wished to enrol in a Bachelor level course and that he advised his former agent of this in 2017, but was advised to enrol in the Advanced Diploma of Leadership and Management instead and to seek sponsorship. The Tribunal considers it more likely that the applicant has now enrolled in a further Advanced Diploma and a Bachelor level course to extend his stay in Australia, rather than because of genuine intentions as a student. The Tribunal notes in this regard the delay of 13 months in the applicant’s enrolment in his current studies following the completion of his Advanced Diploma of Leadership and Management, which was the subject of his visa application. While there was no visa condition requiring the applicant to remain enrolled during this time, the Tribunal considers this lengthy delay in commencing his current studies to be relevant to his intentions as a student. The Tribunal has considered the applicant’s evidence as to the reasons for this delay, including his claims that he contacted several colleges and universities to obtain enrolment, but notes that the applicant indicated he had no documentary evidence of enquiries made to colleges and universities during this period. The Tribunal considers it more likely that the applicant’s current enrolments in the Advanced Diploma of Business and the Bachelor of Business (Professional Accounting) were made for the purpose of securing a successful visa outcome.

17. As noted above, information contained at folio 13 of the Tribunal file was provided by the Department with a non-disclosure certificate preventing the provision of the documents to the applicant. The Tribunal has addressed the validity of this certificate in its reasons above. The Tribunal advised the applicant of information contained within this folio which may be relevant to his immigration history, namely allegations that he was working in excess of the 40 hours per fortnight condition attached to his visa, was evading his taxation obligations and had not been attending college.

18. The Tribunal notes that since the delegate’s decision on 16 August 2017, the applicant has held a Bridging visa, under which he is able to continue his studies, however there is no condition requiring that he maintains his enrolment. The Tribunal noted above that the applicant did not maintain enrolment for the period from 25 February 2018 until 8 April 2019, which the Tribunal considers relevant for the purpose of assessing his intentions as a student, however it is not a breach of the applicant’s Bridging visa conditions. The Tribunal notes that the information contained at folio 13 does not mention a specific period when the allegation of non-attendance of college is said to have taken place. The applicant’s PRISMS record supports a finding that the applicant has maintained enrolment since 2011, other than this period of approximately 13 months while he has held a Bridging visa. The Tribunal therefore does not rely on the information with respect to this allegation and considers it not to be relevant to the considerations before the Tribunal.

19. In relation to the allegations that he has breached the work limitation condition of his visa, the applicant gave further evidence with respect to his work history. He stated that he worked in a few places, including a meat factory from 2007 to 2012, then in catering and then as a telecommunications technician from 2013 to 2018. He stated that he forgot to give details regarding the telecommunications job because he worked only a few hours, stating that he worked as a sub-contractor and each job would last one to two hours. He stated that in addition he has done some Uber driving, but he has not done this every week and when he has done so he has worked a maximum of 15 hours per week. He stated that when he works as an Uber driver for 15 hours per week he has earned approximately $500 per week. This is in addition to his catering work, which the applicant stated was also sporadic. He stated that some weeks he will work fewer than six hours, other weeks he will do 15 hours, and some weeks no hours.

20. The Tribunal has considered the information contained at folio 13, which does not provide particulars of when the applicant is alleged to have breached the work conditions of his visa. The applicant provided evidence that his work in catering and as an Uber driver is sporadic, and that during periods when he is studying he does not work in excess of the 40 hours per fortnight work limitation. The applicant told the Tribunal that he has complied with all visa conditions. Given the lack of particularity regarding the information at folio 13, the Tribunal does not rely on it and makes no adverse findings in relation to the applicant’s compliance with his visa conditions (cl.14(b)(i)).

21. The applicant has not previously had a visa refused, cancelled or considered for cancellation. He has no other outstanding visa applications. He told the Tribunal he has not travelled to other countries besides Australia. Accordingly, the Tribunal makes no adverse findings in relation to clauses 14(a)(i) and (ii) and 14(b)(ii) and (iv). However , the Tribunal notes the concerns raised above regarding the consideration at cl.14(b)(iii).

22. The Tribunal has given regard to whether there are any other relevant matters. At the hearing the applicant told the Tribunal that he was suffering depression. He stated that it looked as though his career is ruined. He stated that he had failed two subjects in his previous course and that was because he was depressed, but he is now passing every subject. When asked whether he had seen a psychologist or psychiatrist about his condition, he indicated he hadn’t and stated that it looked as though he is getting better. While the Tribunal accepts that an applicant whose visa has been refused may experience symptoms of depression, there is no medical evidence to confirm a diagnosis of depression. Accordingly, the Tribunal gives this little weight. The Tribunal has considered all the information provided by the applicant in support of the application and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above.

23. 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).

24. 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.

25. 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

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

    Frank Russo
    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.