Shemul (Migration)

[2020] AATA 3619

Shemul (Migration) [2020] AATA 3619 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Shahnewaz Ahmed Shemul

CASE NUMBER:  1915733

HOME AFFAIRS REFERENCE(S):          BCC2019/1325299

MEMBER:Elizabeth Tueno

DATE:31 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 31 August 2020 at 4:58pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – compliance with visa conditions – period of non-enrolment – non-completion of four degree courses – enrolment and current study in lower-level course – further information provided late – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(b), Schedule 8, conditions 8202, 8516

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 March 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant had demonstrated sufficient compliance with the conditions of his student visa and also that he met the genuine temporary entrant requirements for the grant of a student visa.

4. On 7 May 2020 the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act inviting the applicant to provide further information, including in relation to their enrolment, to the Tribunal.  The information was required to be provided by 21 May 2020.

5. The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act.  The invitation was sent to the review applicant by email, being the address provided by the review applicant in connection with this application for review.  The applicant provided the requested material, however it was provided on 28 May 2020. 

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1) of the Act.

7. The Tribunal finds that the review applicant did not provide further information as requested within the time prescribed.  In these circumstances, the review applicant is not entitled to appear before the Tribunal: section 360(3).  The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

9. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 Tribunal is satisfied the applicant intends to comply with any conditions subject to which the visa is granted pursuant to clause 500.212(b).

12. 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 to comply with visa conditions?

13. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

14. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).  The following conditions may also be imposed in some cases (cl.500.611(2)): 8303 (no disruptive or violent activity) and 8534 (limited visa entitlement).

15. For the applicant to meet condition 8202, he must have maintained enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.  Further, condition 8202 requires that the applicant not be certified by his education providers as achieving unsatisfactory course progress or unsatisfactory course attendance in his registered courses.  Condition 8516 requires that the applicant continue to satisfy the primary criteria for the grant of a student visa.

16. The applicant arrived in Australia on 9 June 2015 on a student visa.  He completed an initial English course upon his arrival in Australia.  After that, he was enrolled in a Bachelor of Applied Finance from 3 January 2016 until 14 November 2016 but did not complete this course because as he said in his statement of purpose to the Tribunal, he wasn’t interested in accounting.  He then enrolled in a Bachelor Commerce from 5 December 2016 until 27 July 2017 but did not complete this course because he did not like the teaching methods at that particular university.  He then enrolled in a Bachelor of Professional Accounting (despite professing a dislike for accounting) from 31 July 2017 to 20 July 2020 but did not complete this course either because he was unable to understand the lectures and also because he had decided to assist his father in running his business upon his return to Bangladesh.  He also enrolled in a Bachelor of Business from 13 May 2019 but left this course on 30 August 2019 without completing it. 

17. Apart from the initial English language course, the applicant has not completed a single course he has enrolled in since arriving in May 2015.  Additionally, there was an approximate nine month period when the applicant was not enrolled in a registered course of study at all.  He has now only recently enrolled in an Advanced Diploma of Leadership and Management course at South Sydney College, which commenced on 11 May 2020 and will end on 9 May 2021.  Prior to being accepted in the course at South Sydney College, the applicant had attempted to obtain enrolment at other colleges but was refused. 

18. In an email from his migration agent to the GCA (Universal Business School Sydney) dated 6 May 2020, the agent simply stated that the applicant had been unable to complete the Bachelor of Business course “due to some issue, he couldn’t enrol in the course at that time”.  He sought enrolled in the Advanced Diploma course with the intention of resuming his studies in the Bachelor of business upon completion of the Advanced Diploma course.  The applicant sought a deferral for the Bachelor course.  This was refused by the College. 

19. On 18 May 2020, the applicant then sought to enrol in a Bachelor of Business at a different college.  They refused to allow him to enrol in this course because the applicant had “continuously failed in previous 3 providers and breached his visa condition 8202 (8 month study gap before the end of his visa)”.

20. The records of the Department indicate that his enrolment in the Bachelor of Applied Finance was cancelled by the education provider because he had failed to respond to a notice of intention to cancel for non-attendance.  His enrolment in the Bachelor of Commerce was cancelled by the education provider because the applicant failed to enrol in a compulsory study period.  The applicant’s enrolment in the Bachelor of Accounting was cancelled by the education provider for non-payment of fees. 

21. The Tribunal considers that the applicant’s evidence in his statement of purpose and in his completed s.359(2) questionnaire to be admissions of having breached conditions 8202 and 8516.  The Tribunal has had regard to the explanations for these breaches provided by the applicant. 

22. In the applicant’s statement of purpose, he claimed that “[a]s an international student, I understand that I have to abide by the rules and regulations.  I know that I will not be able to work more than 20 hours per week or 40 hours fortnight.  I have to remain enrolled in a course at all time and make sure my tuition fees are paid on time and update the Department of Home Affairs of any residential changes within 7 days”.

23. The Tribunal considers that the applicant’s conduct constitutes a significant and sustained breach of conditions 8202 and 8516 and the extent of the breach leads the Tribunal to have grave doubts concerning the applicant’s stated intention to comply with these mandatory conditions in the future.  Nothing in the applicant’s study history gives the Tribunal any confidence that this will occur.

24. Ultimately, having regard to the length of time the applicant has been in Australia, the period of time he was not enrolled in a course of study and having been certified by his education providers as achieving an unsatisfactory course progress or unsatisfactory course attendance, the Tribunal does not accept as genuine, the applicant’s stated intention to comply with the “rules and regulations” (or as it applies in the applicant’s case, the conditions of his visa) in the future, including the requirement to remain enrolled, which is imposed on all student visas.

25. Having considered the evidence before it and having regard to all the circumstances, the Tribunal cannot be satisfied that the applicant will comply with his visa conditions in the future.  The Tribunal cannot be satisfied, given his study history, that the applicant will remain enrolled as is required, or that he will achieve satisfactory course progress or attendance. 

26. Consequently, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

27. 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.

28. 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

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

    Elizabeth Tueno
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

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

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

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

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

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.