Rathnayaka (Migration)

[2019] AATA 480

Rathnayaka (Migration) [2019] AATA 480 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rathnayaka Mudiyanselage Aravinda Eksith Rathnayaka

CASE NUMBER:  1713884

HOME AFFAIRS REFERENCE(S):           BCC2017/1012901

MEMBER:Bridget Cullen

DATE:6 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 06 February 2019 at 1:01pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – no specific details of course – poor academic record – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499

Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 15 June 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 14 March 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate believed that the applicant was using the Student visa program as a means to extend their stay in Australia, and did not genuinely intend to stay in Australia temporarily as a full time student.

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

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 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 applicant provided the Tribunal with a copy of the delegate’s decision record. The Tribunal has also had access to the relevant file of the Department. The Tribunal has also had the benefit of the applicant statement provided with the application for review, as well as a reference from ‘Elegance Manufacturing and Trading International (PVT) Ltd and a personal reference from ‘P S R Fernando’. The Tribunal was also provided with documents relating to the applicants enrolment in the Advanced Diploma of Business, and the certificate of attainment for their Diploma of Business.

11. The Tribunal, at the commencement of the hearing, provided the applicant with a copy of their PRISMS records obtained from the Provider Registration and International Student Management System. Adopted the procedure set out in Section 359AA of the Act, the Tribunal explained to the applicant the relevance of the PRISMS information, the consequences of the Tribunal relying on the information, and confirmed that the applicant wished to proceed and comment at the hearing, and did not require an extension of time.

12. The PRISMS records indicate that the Applicant had begun various courses at both a Diploma and Bachelor level, with most of them cancelled. As at the time of hearing, the Applicant had only completed a ‘Mixed English and Academic Program’ course in 2013, and a Diploma of Business in 2018.

13. At hearing, the Applicant asserted that he was a genuine student, and looking to complete an Advanced Diploma of Business.  The Applicant was unable, at the hearing, to provide any meaningful detail about his course, such as the specifics of which units he had left to complete, and which he had successfully finished.  The Applicant, following the hearing, was provided until 18 January 2019, to provide further information to prove progress had been made in their Advanced Diploma of Business.

14. The applicant, on 15 January 2019, provided the Tribunal with a statement from Queensford College dated 10 December 2018, showing that the applicant had completed four units towards the Advanced Diploma.

15. The Applicant has been enrolled in the Advanced Diploma of Business since 16 April 2018. The Tribunal finds that for the applicant has made minimal progress towards the completion of the course, having only completed the four units towards their Advanced Diploma. It is difficult for the Tribunal to reconcile this lack of detail by the Applicant with his own studies, with his being a genuine temporary entrant. 

16. If the Tribunal were to have granted the Visa, the applicant would have extended their stay in Australia, save for some short trips back to Sri Lanka, to at least 14 April 2019, a period of 5 years and 8 eight months since his first arrival in Australia as a student. The Tribunal considers that, if the Applicant genuinely wished to complete an Advanced Diploma of Business, he has had more than ample time to do so since his arrival.

17. 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).

18. 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.

19. 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

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

    Bridget Cullen
    Member