Tump (Migration)

Tump (Migration) [2020] AATA 1100 (26 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Canaan Tump
CASE NUMBER:  1913599
HOME AFFAIRS REFERENCE(S):          BCC2019/1288343
MEMBER:D Triaca
DATE:26 March 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 26 March 2020 at 1:10pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – no entitlement to a hearing –genuine temporary entrant criterion not met– failed to provide reasonable reasons for not studying in his home country–maintain ongoing residence – incentive to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363,499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 May 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 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.
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 applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 27 November 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicant in connection with this application for review.
On 9 December 2019, the applicant applied for an extension of time to comply with the Tribunal‘s request and on 11 December 2019 the Tribunal granted the applicant an extension until 18 December 2019. On 10 December 2019, the applicant provided the Tribunal with a written response to the request for further information (359 Response) and supporting documents and consented to the Tribunal determining the matter without hearing.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, 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.
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 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.
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 as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
The applicant is a 25 year old citizen of Papua New Guinea. He arrived in Australia in November 2015 and has held three Subclass 600 Visas and associated Bridging Visas since that time. On 14 March 2019, the applicant applied for a student visa. On 16 May 2019 a delegate of the Department refused his application (delegate’s decision). On 30 May 2019, the applicant applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to documents the applicant has provided to the Department and the Tribunal, including the applicant’s 359 Response and supporting documentation which included a letter from Giru Ltd dated 10 November 2019; Letter from the Kui West Rugby League Club 2 December 2019; Letter from the Seventh Day Adventist Church 21 November 2019; Letter of Go Fly Aviation 24 November 2019. The Tribunal has read and had regard to the applicant’s 359 Response and supporting documents.
The Tribunal has also read and had regard to the applicant’s application for a student visa 14 March 2019, Genuine Temporary Entrant (GTE) Statement; Passport Extracts; Certificate of Overseas Health Cover; Appointment of Representative; Confirmation of Enrolment Documents; Letter to AAT from Times Lawyers dated 30 May 2019 (Submission).
At the time of his application, the applicant was enrolled and held a Confirmation of Enrolment (CoE) in a Certificate IV in Business and Diploma of Business at Imagine Education Australia. His 359 Response states that he completed his Certificate IV course and is currently studying the Diploma of Business Course, although he has not provided any supporting documentation in relation to his academic progress in these courses.
The Diploma of Business is due to be completed on 8 May 2020.
This is an unusual case in which the applicant first arrived in Australia in November 2015 and has returned to Australia on a visitor visa for 10 days and then returned to Australia in June 2016 for 73 days to engage in flight training for his flying hobby and returned again for 86 days in September 2018 to “visit Australia, exploring and looking for a proper school to further-full time education.” On 2 February 2019 the applicant says he returned to Australia in order to commence studying and once onshore applied for a student visa, the subject of the application.
In his 359 response, the applicant states that his plan for the future is to set up a business as a motor mechanic in Papua New Guinea (PNG). He says that his parents own a Public Motor Vehicle business in PNG and he hopes to return home to run “a global mechanic and or Public Motor Vehicle related international business.” The applicant also provided a letter from Giru Limited, a Civil Works, Construction and Plant Hire company based in PNG dated 10 November 2019. This correspondence states that the applicant has worked casually with the company between 2015 and 2018 and is always welcome back at the company and states further that a “Senior Managerial Role will be waiting for him upon completion of his studies in Australia.” In his 359 Response he states that he will return to PNG and work for Giru before commencing his own business.
The Tribunal does not consider the completing a Diploma of Business offers much value to the applicant’s future. Whilst the Tribunal accepts there is an inherent value in completing a Diploma Course, the applicant has not explained in any detail how the completion of the Diploma will assist him in improving his employment prospects and remuneration in the future. The applicant’s plans do not seem well developed and it is unclear to the Tribunal how the completion of a Diploma of Business will assist the applicant in opening a global mechanic and public motor vehicle related international business. There is just no evidence to suggest that if he successfully completes the Diploma course he will be closer to realising his goals.
Further, it appears that the applicant is highly valued by his former employers at Giru Limited and would be able to return to work at that company. Whilst the letter states that a senior managerial position would be waiting for him upon completion of his studies, it does not specifically state that this future employment is dependent on completing a Diploma. Given that the applicant has already completed a Certificate IV course, it seems likely that he could return to Giru and find suitable employment if he wishes. It would also seem that the applicant is in a position to find work with his parents’ motor vehicle business irrespective of the completion of his studies.
The applicant failed to provide reasonable reasons for not studying in his home country. He gives predominantly cultural reasons for wishing to study in a “cosmopolitan country“. There is simply no practical reason provided why the applicant would be unable to study an equivalent course in PNG. The Tribunal also notes that by now, the applicant ought to have received all the suggested benefits associated with experiencing the Australian culture in circumstances in which this is his fourth visit to Australia and he has lived in Australia for approximately 12 months on this final occasion.
The applicant’s family is stated to be his Parents and five siblings living in PNG. He is unmarried and does not have any children. He states he keeps in contact with his family via the social media at least twice a week. The applicant has resided in Australia for approximately 12 months, is seeking to extend his stay and appears to be managing his familial relationships and the Tribunal does not consider that the applicant’s personal relationships operate as a significant incentive to return home. The applicant’s submissions stated that the applicant is extremely close to his family and would return home but without objective evidence as to why this would be the case, the Tribunal does not accept this submission.
The Tribunal considered the applicant’s personal ties to the Seventh Day Adventist Church and the Kui West Rugby League Club and had regard to the letters in support prepared by those organisations. It is fair to say that both organisations speak glowingly of the applicant‘s character and this is noted by the Tribunal. However, on the evidence it is not apparent to the Tribunal that the applicant’s ties to either the Seventh Day Adventist Church or the Kui West Rugby League club operate as a significant incentive to return home.
There is no evidence in relation to the applicant’s ties to Australia and the Tribunal makes no adverse findings against him in this regard.
The applicant states, and the Tribunal accepts, that he has no concerns in relation to military service commitments in his home country that may act as an incentive not to return home.
The applicant states, and the Tribunal accepts, that he has no concerns in relation to political and civil unrest in his home country that may induce the applicant to remain in Australia indefinitely.
There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to others there.
The Tribunal considers the applicant has some knowledge of living in Australia and his course of study. This is not surprising given that the applicant has visited Australia on 3 previous occasions.
The applicant appears to have travelled between Australia and PNG without issue and the Tribunal makes no adverse findings against him in relation to his travel history.
However, the Tribunal is concerned by the manner in which the applicant came to apply for his student visa. Whilst applying for a student visa once onshore is not prohibited, the circumstances in relation to this application are as follows. He travelled from Papua New Guinea to Australia on 4 separate occasions since 2015. On the first occasion he states he was “exploring further education opportunities”. On the third occasion he states he was “exploring and looking for a proper school to further full time education.” On the fourth occasion he says he returned to Australia to “commence study at the school the applicant has decided to enrol in.” However, it was not until March 2019 that the applicant applied for the student visa that is the subject of the application. The Tribunal considers that in circumstances in which the applicant returned to Australia before applying for a student visa and was clearly intending to study at the time of his return in February 2019, indicates that his intention was to circumvent the intentions of the migration program and this weighs against the application.
There is limited evidence in relation to the applicant’s economic circumstances. He states he owns a Coaster Bus in PNG valued at $30,000 and a car valued at $2800 in Australia. He says he is financially supported by his parents. At the time of the application, the applicant provided no evidence of employment and sated he was unemployed since 13 March 2019 and “hasn’t settled yet”. The applicant provided no updated evidence in relation to his current employment, if any, in his 359 Response. In all the circumstances, the Tribunal does not consider there is sufficient evidence to make a finding on the applicant’s economic circumstances and whether they operate as a significant incentive not to return home.
The Tribunal has also read and had regard to the applicant’s letter from Go Fly Aviation dated 24 November 2016. This correspondence confirms the applicant undertook flight training in Australia in 2016 but did not complete the course. The Tribunal considers this correspondence has no bearing on the application.
Having regard to the evidence, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The applicant has not demonstrated there is much value in the course, does not appear to have a significant incentive to return home and applied for the visa in circumstances that led the Tribunal to consider that he may be seeking to utilised the student visa program as a means of extending his stay in Australia rather than any educational benefits.
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).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
D Triaca
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.

[2020] AATA 1100

26 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction