Rathor (Migration)

[2020] AATA 6012

Rathor (Migration) [2020] AATA 6012 (10 July 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Khurram Rathor (‘First Applicant’) Mrs Sana Anjum (‘Second Applicant’) Miss Moomal Rathor (‘Third Applicant’)

CASE NUMBER:  1905084

DIBP REFERENCE(S):  BCC2016/2384419

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 July 2020 at 10:58 am (VIC time)

DATE OF WRITTEN RECORD:                28 July 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 28 July 2020 at 4:52pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment status – genuine temporary entrant – declared intentions of the applicant – Direction No.69 – academic history – course cancellations – personal ties – length of time in Australia – economic circumstances in home country – incentive to remain in Australia – value of proposed course – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212

CASES
Kumar v Minister for Immigration and Border Protection [2020] FCFCA 15

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 26 September 2016 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

1. At the hearing on 10 July 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an oral statement of the decision and reasons for that decision of the Administrative Appeals Tribunal in the case number 1905084 in an application for review brought by Mr Khurram Rathor who is the primary applicant in this matter and also his wife, Ms Anjam and his daughter, Ms Rathor who is six years old.

1. The applicants are citizens of Pakistan and the first applicant is almost 40 years of age and the second applicant is his wife and the third applicant is their daughter and they seek review of decisions made by a delegate of the minister refusing to grant them student visas.

1. The applicants applied for their visas originally on 17 July 2016, it is a subclass 500 visa that they applied for and the applications were originally refused by a delegate of the minister on 26 September 2016. The delegate refused the visa because the delegate was not satisfied that the first applicant met the primary criteria contained in clause 500.212. I should say that there are two types of student visa essentially.  They are both subclass 500 student visas but the subclass 500 visa permits an applicant who wants to study full time in Australia to apply for a visa as a main applicant but it also can be applied for by members of the family unit of such a person, but the outcome in relation to the family members is contingent on a successful visa outcome for the main applicant - that is the person who is studying.

1. First and foremost, it is the first applicant that must meet the primary criteria and if they do then the secondary applicants. In this case applicants two and three, they must meet the secondary criteria. And so all of the applications for visas were refused in this case because the delegate was not satisfied that the main applicant, being the first applicant, didn’t meet the genuine applicant criterion contained in clause 500.212 because he didn’t meet the criteria there then the applications of applicants two and three also necessarily failed.

1. So the hearing of this matter today, I convened the hearing on 10 July 2020 and the first applicant participated at the hearing to give evidence and present arguments by phone, in keeping with the Covid-19 policy to conduct hearings remotely and the second and third applicants did not participate. That was not necessary for them to do so because the critical issue here is whether the first applicant meets the primary criteria.

1. And so, I will refer again to the procedural history of this mater. The matter, after it was refused by the delegate, was appealed by the applicants to the tribunal and it originally came before another tribunal member and that was Member West, who made a determination on this case on 4 April 2018 and also she didn’t think that the first applicant was a genuine applicant and so affirmed the decision.

1. The applicant then appealed that decision to the Federal Circuit Court of Australia, arguing jurisdictional error and on 25 February 2019 the court set aside Member West’s decision and remitted the application for review back to the tribunal and directed that the review application be reconsidered in accordance with the law.   That is because the court had found that the first tribunal decision was affected by jurisdictional error. It overlooked probative evidence relevant to the claim of being a genuine temporary entrant and the

Minister conceded that the original tribunal had not complied with section 359A of the Act because there was a PRISMS record of which should have been provided to the applicant in accordance with the formalities associated with section 359AA and the applicant should have been invited to comment.

1. Now, it comes back before a new tribunal, which is myself and so effectively this means the matter is to be considered afresh. I need to consider whether or not the applicant meets the criterion in clause 500.211 (the enrolment criterion) and secondly whether he meets the genuine applicant criterion in cl 500.212.

1. All of this was outlined to the applicant in the letter inviting him into the hearing on 23 June 2020 and the applicant has provided evidence prior to this hearing today which was filed in support of his application. Certainly, he has provided evidence of commencement of a current studies that he is currently enrolled in a Graduate Diploma of Management of Applied Learning which starts of 5 July 2020 and finishes on 2 July next year. He enrolled in that course on 30 June 2020, so I find that the first applicant met the criteria contained in clause 500.211 on that basis.

1. Now, the critical issue in this case is whether the applicant meets the genuine applicant criteria. Clause 500.212 states that for a student visa application to be successful the applicant must be a genuine applicant for entry and say as a student in Australia. The regulations identify three factors of satisfaction that must be met in order for a first applicant such as the present to meet that criterion. First, the applicant must demonstrate that he is a genuine, authentic applicant for entry and stay in Australia as a student. He has enrolled in this and he is going to study this because it is going to enhance his skillset.

1. Second, the applicant needs to demonstrate that he is a genuine applicant because he intends genuinely to stay in Australia temporarily. He must demonstrate an intention to stay in Australia for a limited time only - not permanently. It must be an unqualified intention which requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing new, to obtain specific skills and formal qualifications that will place him in a better position with better employment opportunities. Once they have had a reasonable amount of time to complete their studies it is expected that the visa holder will immediately depart Australia.

1. Now, the tribunal does acknowledge that this expectation is not without qualification. The student visa holder’s circumstances may change whilst studying in Australia. They may genuinely wish to extend their stay so they can undertake further studies, such that there is need for a further student visa application to be made. Alternatively, they may enter into some personal relationship with a permanent resident or Australian citizen, with the partner visa or employer sponsorship or for some other reason that they may seek to extend their stay in Australia by other legitimate means.

1. And so, the student visa holder may become eligible to apply for another kind of visa before the student visa expires, however, in the applicant’s circumstances arising the general expectation remains, a student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country and enter the workforce to put their newly acquired skills to economically productive use. That is element number two.

1. Element number three, I should say, is the applicant must demonstrate that he intends to comply with any conditions to which the visa may be subject. He must show an intention to remain enrolled in a registered course of study and make satisfactory course progress and to attend classes and not to downgrade their course.

1. So those are the three states of satisfaction that I must consider. I should indicate that I am satisfied that he meets one and three. The issue really for close consideration in this case is element number two, which is whether he has an intention to genuinely stay in Australia temporarily.

1. So, how do we ascertain an applicant’s intentions in a case like this? Well, it calls for an enquiry into their state of mind. The regulations direct the tribunal to consider an applicant’s state of mind as it is at the time the tribunal makes its decision. That effectively means the tribunal must take a snapshot of the applicant’s intentions at that time to determine whether the genuine temporary entrant criterion is met.

1. Nobody has direct access to the applicant’s mental processes, so the tribunal must look to other sources of evidence that are extraneous to an applicant’s mind from which reasonable inferences may be drawn as to what their actual intentions are likely to be. The starting point of convenience is probably to consider any relevant stated intentions that may have been made by an applicant. Reference may be made to any relevant statements made by the applicant in oral evidence or contained in documentary material before the tribunal.

   Certainly that would need to be done now because it has been some time since he was before the original tribunal and of course what he is proposing now is a completely different course, which is the Graduate Diploma of Management of Applied Learning and so the tribunal needs to take into account his declarations and any written statements he has made in support of the application. The evidence that he has given is consistent with an intention to remain in Australia temporarily. He has said he did not wish to remain in Australia permanently and he intends to return to his home country of Pakistan after he completes this course because he has been here for some time and he has not applied for any permanent resident visas. He may well have been eligible to apply for a permanent resident visa. The tribunal is not aware of any such applications but the applicant, in the course of giving evidence, was insistent that he has not. The tribunal accepts his evidence in that regard because there was no evidence to the contrary.

1. But the tribunal cannot exclusively rely on the declared intentions of any student visa applicant. Anyone can say what needs to be said in order to meet the requirements. There is that ‘human’ element of potential unreliability associated with such declarations, and so the law requires the tribunal to have regard to more objective considerations to work out what the applicant’s true intentions are. The regulations specifically oblige the tribunal to take into account the applicant’s circumstances, immigration history, record of compliance with the conditions of previous visas and any other relevant matter.

1. There is also Direction No.69. That is a ministerial direction that was issued by the minister in 2016 and that really elaborates upon the regulatory criteria. It requires the tribunal to consider an applicant’s circumstances in their home country, the potential circumstances in Australia, the value of the proposed course of study to their future and their immigration history. The direction states that weight should be placed on an applicant’s circumstances that indicate that a student visa is intended primarily for maintaining residence in Australia. It says that the factors should not be seen as a checklist; they are intended only as a guide for the tribunal when they come to consider an applicant’s circumstances. They must be considered as a whole in working out whether the applicant meets the genuine temporary entrant criterion.

1. Ultimately, the tribunal should refuse the visa - or in this case it should affirm the delegate’s decision – if, after weighing up the applicant’s circumstances, their immigration history and any other relevant matter, the tribunal is not satisfied that the applicant genuinely intends to temporarily stay in Australia.

1. The tribunal must also have regard to the principles pronounced by the Full Court of the Federal Court of Australia in the case of Kumar v Minister for Immigration and Border Protection [2020] FCFCA 15. Now, in Kumar, that case considered the application of the previous subclass 570 to 580 provisions and direction No.53, which is worded slightly differently to direction no. 69. In that case the court drew a distinction between three aspects of the tribunal’s decision-making processes and its obligation to consider the application of various factors set out in direction No.53 (the predecessor to direction No.69). The court referred to the factors which the tribunal was obliged to consider.

1. Direction No.53 says that the tribunal must consider a factor whereas direction No.69 says that it should consider a factor. That’s quite a fundamental difference and so there isn’t the same mandatory obligation. In any event, I should indicate that the tribunal now has considered all of the factors in direction No.69 to the facts of the case at hand.

1. Apart from actually considering the factors, the next issue that arose in Kumar was the extent to which of all these factors in direction 69 must be referred to explicitly in the tribunal’s reasons now, and also the extent to which the tribunal must make formal findings in relation to this factor. And there are lots of factors, I should say. There are, if you break them all down, there is probably more than 20, including all the various sub-factors.

1. The point of Kumar is that the tribunal only has to make explicit reference to and make findings in relation to those factors it considers to be material in the ultimate outcome. It doesn’t need to refer to every single one if it does not make a difference to the outcome. I should be more specific in that. A matter will be considered immaterial if it has not had a material impact on the outcome.

1. I should also note that the matters in direction No.69 are not exhaustive the court can have regard to any other relevant matter.

1. Now, I come back to the applicant’s case. I refer to information which I put to the applicant in the course of the hearing pursuant to section 359A and s 359AA of the Act and that is an up to date educational report which was obtained in relation to the applicant from the Department’s the International Student PRISMS database. And the applicant already has a copy of that, apart from the two additions in the entries to the report. In the letter that the tribunal sent him, inviting him to this hearing, the tribunal attached a copy of the PRISMS database search that was on the original tribunal file which had not been communicated to him at the original tribunal hearing. The only difference with the up to date PRISMS record now is that the top entry, which related to his current enrolment back when he was before the original tribunal, which was an Advanced Diploma in Network Security, now states that he has finished the course (in 2018 the report stated that he was studying). That is consistent with the evidence the applicant provided at the hearing before the tribunal. He said he successfully completed that course. He provided relevant documentation from college indicating that he successfully completed the Advanced Diploma on 5 January 2019.

1. The up to date PRISMS report shows his entire academic history, including cancellations of enrolments. Those cancellations - if you just look at the cancellation entries in themselves – suggest a concerning pattern of conduct involving many enrolments in courses which have not been completed. I should say that the tribunal is not concerned with that apparent pattern gleaned from the report ; it’s not a material issue in this particular case at all. The tribunal is of this view because the applicant has completed a Masters level qualification and two advanced diplomas, which shows that he is quite capable of completing courses. Those ‘cancellations’ are unfortunate and the applicant has sought to explain those cancellation entries.

1. And so, I now come to refer to this letter dated 30 June 2020 which effectively is the applicant’s statement of submissions. His primary evidence, I should say, is contained in it. It is obviously a very well-considered statement and so I will read it verbatim for the record. It is dated 30 June 2020.

   30-June-2020

Administrative Appeal Tribunal Case Number: 1905084

Respected Member,

I am requesting you that kindly consider on the following statement, in this statement I given all the explanations and reasons to prove my genuine intentions as student.

In previous hearing respected member present a PRISMS report and most of the time member talk on issues already resolved in my first MRT appeal and tribunal at that time gave the decision in my favour. Although I tried to explain him again on the issues like previous COEs cancellations and the study gap at that time because of not allowing by the education provider to start the course without valid visa. Education providers accepted their mistake in written, I already have provided the letter from them as evidences to the respected tribunal at my first MRT appeal and on that grounds, tribunal gave decision in my favour.

PRISMS record also have some errors, made by the education providers and I would like your consideration on them. Diploma of Printing and Graphic arts is mentioned as cancelled but I had completed the course successfully provide the results to the tribunal in last hearing. Repetition of same course is also shown in PRISMS, Advance diploma of marketing and communication is mentioned twice as cancelled but truth is cancelled only once. I also explain the tribunal that course COE was issued by the education provider by mistake. Once I receive the COE, I request education provider to cancel the wrong COE as that course was not related to my studies neither helps me to improve my skills. Even that course COE was issued mistakenly but member didn’t understand that.

Master of Technology COE was cancelled by the education provider for not holding the valid student visa; At that time again I tried to convince the education provider that they must not cancel the COE as I have right to study until final decision is made on my application and also present the MRT decision in which respected tribunal mentioned that COE can’t be cancel until final decision Is made on the application. Unfortunately, due to lack of knowledge they didn’t recognise and cancelled my COE. After finishing my recent course, I tried to enroll in the final course but again I was refused to get admission and same reason was given that I don’t have valid student visa, every time I have to wait for the AAT hearing letter to get COE. Even for the Graduate Diploma COE which I have submitted to the respected tribunal, education provider only issues the COE when I explain him that AAT asked me for the COE and send him the invitation letter as proof. Respected member education providers don’t have any knowledge about AAT or they don’t bother to issue the COE without formal letter from AAT. They even don’t give in writing as well.

I have successfully completed all the courses I took and my good educational performance can be viewed in the transcripts and results already presented to the tribunal. I have successfully finished the course I was enrolled in the previous hearing and also finished one more course while I was waiting for the judicial review. Member in previous hearing assume for no reasons that I will not finish the course I was enrolled at that time.

I have genuine intentions to finish my education and return to my country, it would be more easier for me to stay in Australia for long period or either permanently by applying for permanent residency, regional migration or got sponsored, but I always have intensions to go back to my country and join my family and start a new startup by myself. Only reason for doing this courses after Masters is that while I was doing professional year and had chance to done

the internship I learned a lot about the real world working environment and found that I am lacking few very important skills that I must have to develop before joining my family back in my country and start a startup business. That’s why I took diplomas as best option to learn and develop the skills I need. I have successfully have finished leadership and networking courses and now I pursuing last skill which is Management.

In previous hearing member respondent that I didn’t visit my family often and don’t have strong ties with them, I tried to give the valid reasons for my rare visits but member didn’t understand my view so I would like to explain again for not visiting my family very often. Since first MRT appeal positive outcome, I promised myself that my whole focus and priority will be my studies and I will not distract myself until I will finish my studies, successfully completion of Masters of Information System followed by Professional year and then to enhance my weak skills and learn the skills I lack I successfully finished the Leadership and Networking courses and now finally I am doing Graduate Diploma of Management which is last course I am studying. My parents too appreciate my decision and asked me to come once and for all after finished the education. It doesn’t mean that I have loose bonding or ties with them, I regularly video chat with my parents and siblings on What’s up and viber thanks to the technology advancement.

Only my wife and my children are here with me but not all my family is accompanied me in Australia, my father, my mother, my brother and my sister are still in my home country and in my culture they all count as immediate family members. Still we live in joint family systems and I am very close to my parents so it is not correct that I don’t have any family ties in my country in fact I have strong family ties in my country and this is the reason that I am still financially supported by my father and my mother and siblings also support me morally to finish my studies.

In last AAT hearing, respected member had uncertainty about my ties to my country. I have very strong ties with my country and family. I am student and all my expenses are bear by my family and they are supporting me financially from day one. I am still studying here that’s why I don’t have any business or assets on my name in my home country because it will hard for my family to manage it if I will be not present there. I belong to the business family, my father is a business man and he owns the business and properties, and after finishing my studies when I will go back to my home country I will join the family business and then can own the assets on my name and will also establish my IT startup.

I would like to mention once more that my career and education plans are very clear, Courses I have already finished and the course I am currently studying all are related and not randomly selected as in previous AAT hearing member once again assume without allowing me to explain the relation. For my future plan, I again like to mention that after completing my studies I will go back to my country and will start the IT startup with the help of my family.

Australian education system is far better than education system exist in my country and Australian Qualification Framework is recognized by all world and this is the reason that students from around the world come to Australia for higher education. The reason for me to choose these courses in Australia is that will put weight on my educational portfolio and will also help me in my IT startup to attract the clients not only locally but globally as well.

I anticipate that respected member will consider on my appeal and also consider on the points previous member overlooked or didn’t understand. I would request the respected tribunal member will give swift and favorable consideration on all the facts and explanations I have provide in this statement. Thanks, and regards

Khurram Shabbir Rathor 30-June-2020

1. And that is the statement, or it contains the essential points that certainly lie in his favour and I certainly have placed appropriate weight on those in considering the outcome of this review application.

1. So, I have already referred to direction No.69 and why the tribunal has an obligation to have regard to the applicant’s circumstances in his home country. I have considered his reasons for not undertaking a course similar to a graduate certificate in management in his home country or in that region. He said that Australia’s education system is basically better. I have given that appropriate weight. I understand the rationale for studying also must be that he is already here, and he can more easily access an enrolment in courses while he is already here rather than go back to his home country.

1. I have given consideration to the extent of his personal ties which he has outlined in that statement and also in previous statements he has made to the tribunal. Although he may have demonstrably strong links with his family in his home country, the reality is they cannot be that strong because he has chosen to live away from them since 2006. He has been living in Australia for 14 years.

1. I come back to the point made pursuant to section 359A. The tribunal expressed a concern it had that what this record shows is an education history in Australia studying, purportedly as a temporary full time student for 14 years in a row, which in turn shows a pattern of conduct which suggests he is just applying for one student visa after the other because he wants to maintain ongoing residence. And so the tribunal invited him to comment on that information and also advised him that he had the right to seek additional time and if he wants additional time he could seek it. He did not seek additional time. He insisted that although there is that lengthy history which he appropriately acknowledged is suggestive of a rather lengthy stay, that this is his last course and he insisted that it was.

1. The tribunal has considered the applicant’s economic circumstances in his home country. There are no specific assets of significance in the tribunal’s view that he has strong attachments to. Even accepting he has assets back in his home country in the nature of a contingent beneficial interest (family property), the tribunal does not consider that there are any assets of this nature to be operating as a significant incentive for him to return to Pakistan.

1. I have considered his economic circumstances in Australia relative to those in is home country of Pakistan. The United Nations Development index ranks Australia sixth in the world in terms of social and economic development. It is an objective measure that shows the that the quality of life in Australia is relatively high as compared to the rest of the world. Residents enjoy high levels of material wealth, high life expectancy and significant social benefits. The general conditions in the applicant’s home country are not nearly as attractive for residents of Pakistan. The UNHDI ranking is well below 100. Assuming all other things being equal, that indicates with a certain degree of clarity that the first applicant and his family will be far better off remaining in Australia then he would be if he were to return to Pakistan.

1. Objectively, he has a strong incentive to remain in Australia for this reason alone. There are no military service commitments or political or civil unrest concerns in any event even if there were, they are not material.

1. I refer to the first applicant’s circumstances in Australia. The only familial ties he has to the jurisdiction, which I accept ,are his immediate family (his wife and his child). However, greater significance lies in the fact that the first applicant has been living in Australia for 14 years. With the passage of time the first applicant has become accustomed to the Australian way of life and his ties to the community have strengthened. He obviously has a satisfying

life. The third applicant was born in Australia. She is six years old. In four years she will acquire automatic citizenship if she is permitted to reside here until that time.

1. The applicant has enjoyed the relatively high wages that the Australian economy produces, and he will also have developed a social network after 14 years. He has spent more than a third of his life in Australia and virtually his entire adult life. The practical reality is that he is likely to regard Australia as his home. If he and his family are to leave Australia now that will necessarily involve significant upheaval in his life. This is the most material consideration that weighs against the applicant in this case.

1. The tribunal finds that the first applicant has a strong incentive to remain in Australia. I have given consideration to the applicant’s level of knowledge of living in Australia and level of research he has undertaken in relation to his living arrangements. He has been living here for 14 years so he has the kind of knowledge of living in Australia that one might expect. It is an immaterial consideration in this case.

1. The tribunal has given consideration to the applicant’s level of knowledge in relation to the Graduate Certificate of Management. He has explained in very general terms that this will enhance his skills in relation to leadership. He has said very little other than that as to how it will actually help him. It’s been expressed in a very general way about helping him start up a business when he returns. Given that he had taken the opportunity to articulate all of his reasons as to why he is genuine in writing, one would expect that a more comprehensive explanation to have been given for enrolling in this graduate certificate course.

1. The lack of explanation is probably explained by the timing of his decision to enrol in this course. The original tribunal’s decision was set aside some time ago. The last course he completed was in January 2019. He enrolled in the current graduate certificate course on 30 June 2020, which is about 11 days ago, which was just after the letter of 23 June that was sent to him inviting him to the hearing. It appears that the first applicant’s decision to enrol in the course so was made in haste without a proper assessment having been undertaken as to whether this course was suitable for his specific needs. The fact that the applicant has previous qualifications obtained in leadership and management really does make the tribunal wonder how much additional benefit this particular course will do.

1. The applicant’s decision to enrol in this course in haste, the irony associated with that decision is not lost on the tribunal because the first applicant claims now that he has only ever remained in Australia to study. Yet since January 2019 he has not studied, which is inconsistent with his claim that is why he is here. He has had 18 months since that last course to enrol in something. His graduate certificate, which he now proposes, could have been completed within that time.

1. The tribunal finds that he made this decision to enrol in this course because of his realisation that the tribunal’s reconsideration and redetermination of his review application was imminent - not because he has a genuine desire to study and obtain this qualification.

1. I have given consideration to whether this graduate certificate is consistent with his current level of education. It is a higher level course but he already has Masters - he also already has an Advanced Diploma of Leadership and Management. I don’t see much value in doing it at all, even though I imagine that he would successfully complete it if he is granted a visa.

1. I have given consideration to the applicant’s immigration history. Obviously, that is tied in with the fact that he has been here for 14 years. He has no adverse history other than the fact that he has been here for 14 years. But that in itself really is the most significant concern in this case. The tribunal is now presented with the situation involving a non-citizen who has applied for yet another student visa after living her continuously in Australia for 14

years, purportedly as a student. With each day that passes the first applicant’s stay in Australia becomes less temporary and more permanent.

1. The tribunal finds that the first applicant has resided in Australia on a continuous basis for approximately 14 years and that this evidence alone strongly indicates the he is attempting to use the student visa program to maintain ongoing residence in Australia and that he was not a genuine temporary entrant. Other than that, I am not aware of any application for visas that he has made in Australia or other countries that have been refused. I accept that he has been compliant with visa conditions that he has held to date. This is self-evident from the fact that he has successfully completed a number of courses including a Masters course for which he is to be commended.

1. But while it is certainly true that he has successfully completed all of those courses, the more courses that are completed does not make a more genuine student. There is no such thing as a genuine student in perpetuity, but that really appears to be what the first applicant has invited the tribunal to accept here. Being a student is a transitory occupation that is undertaken by a person who wishes to gain knowledge and skills that will permit them to advance within their chosen vocation. The very idea that somebody can be a full-time student for 14 years is just not a credible proposition at all.

1. In terms of any value that may be found in the applicant’s ability to successfully complete qualifications that he has enrolled in - and I do accept that he has successfully completed several qualifications including a Masters, any value that may be found in the first applicant’s propensity to comply with his visa conditions in his earlier years of studying has rapidly disappeared now when I turn to consider whether he is a genuine temporary entrant now.

1. In his case his conduct of complying with student visa conditions previously and also his bridging visa conditions over such a lengthy period is actually more consistent with the behaviour of a person who is attempting to maintain ongoing residence.

1. I have no information before me says he has not complied with conditions of visas issued from other countries. I do not have any information adverse or otherwise to the applicant in relation to his immigration history.

1. The tribunal has ultimately come to the view that the sheer time that he has been here is very suggestive that he is attempting to use the student visa program to maintain ongoing residence. I do note that the principal purpose of the Australian Government student visa program to enable non-citizens who are not permanent residents to study in Australia temporarily. The program contemplates visas being granted to non-citizens who genuine temporary entrants for that specific limited purpose that student visas are granted - they are not granted for the purposes contemplated by other types of visas, many of which are designed to offer non-citizens a path to permanent residence.

1. And so, the evidence here is really overwhelming and that is really the 14 years of the applicant staying in Australia. I do find that the first applicant is attempting to use the student visa program to circumvent the intentions of Australia’s migration program and by necessary implication his own evidence has led me to find that the he is attempting to obtain a student visa to maintain ongoing residence in Australia.

1. So, the overall assessment is that I find the applicant would prefer to remain in Australia on an ongoing basis. I do not accept his claim that he does not wish to remain here permanently.

1. The tribunal therefore is not satisfied that the first applicant meets the criteria contained in clause 500.212(a) of Schedule 2 of the Regulations. The second and third applicants’ cases for student visas also necessarily fail for that reason.

1. The time now is 10.57 am on 10 July 2020. Although the applicant meets the enrolment criterion, he does not meet the temporary entrant criterion. The tribunal affirms the decision not to grant the applicants student visas.

DECISION

1. The Tribunal affirms the decisions under review.

Dr Jason Harkess Member