Vetrivel (Migration)

[2019] AATA 2683

Vetrivel (Migration) [2019] AATA 2683 (2 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anbuselvan Vetrivel

CASE NUMBER:  1722483

HOME AFFAIRS REFERENCE(S):           BCC2017/177159

MEMBER:Damian Creedon

DATE:2 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 02 June 2019 at 9:45am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant failed to provide requested information– genuine temporary entrant criterion not met – not currently enrolled in a course of study –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360,363A, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 January 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The Tribunal formally wrote to the review applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal. The Tribunal did not receive any response to that written invitation from the applicant.

5. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the review applicant’s nominated email address, being the email address provided by the review applicant in connection with this application for review.

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).

7. The Tribunal finds that the review applicant did not provide further information as requested. In these circumstances, the review 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.

8. 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.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

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

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. 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.

Overview of evidence

1. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

2. The applicant is a 29-year-old Singaporean national who first arrived in Australia on 10 July 2011 as the holder of a Student (Class TU subclass 572) visa valid until 5 September 2013. 

3. According to information submitted to the department by the applicant in support of his application for a student visa:

   a.He first came to Australia to study in the hospitality industry as he “had thought that was a career path that [he] would follow”.

   b.After some time in Australia, enjoying an “active lifestyle”, he developed an interest in in the fitness industry and enrolled in and completed Certificates III and IV in Fitness.

   c.He undertook a Certificate IV in Leadership and Management to “support” his previous qualifications as he was “given advice” that this would be beneficial for his goals of working in “leadership positions”.

   d.Upon finishing his studies he plans to gain work experience and “own [his] own wellbeing and fitness business where [he] can provide [his] clients with healthy meal preparation and cooking classes”.

   e.He has re-enrolled in the Diploma of Hospitality as he “failed five units and feel[s] that it would benefit his professional goals to complete the course”.

   f.He states that he reason that he did not apply himself fully to his studies was “because [he] lacked self-discipline which [he] has now developed when [he] recognised the time and money that [he] was wasting”.

   g.He states that he has chosen to stay with the same education provider as this will enable him to complete the units he did not previously pass rather than having to repeat the entire course.

   h.He states that he has maintained ties with his family and they have been providing “financial support” for his studies.  He states that he has made “a number of trips” back to Singapore to visit family and friends.

   i.He states that his parents encouraged him to study in Australia as they felt that it would be “good for him to experience a different culture”; they considered Australia safe and its qualifications are well regarded; and that it would enable the applicant to “develop some independence” and “better equip” him for his return.

   j.He has been employed on a casual basis with a hospitality company to gain work experience, however his parents have “predominantly” been supporting his study.

4. The delegate’s decision record, dated 1 September 2017, notes that, at the date of his current visa application (31 January 2017), the applicant had completed the following courses:

Course Name	Date Commenced	Date Completed
Certificate III in Hospitality	19/07/2011	05/07/2013
Certificate IV in Hospitality	29/07/2013	13/12/2013
Diploma of Hospitality	03/02/2014	27/06/2014
Certificate III in Fitness	20/07/2015	11/12/2015
Certificate IV in Fitness	01/02/2016	01/07/2016
Certificate IV in Leadership & Management	18/07/2016	16/12/2016

1. The delegate also noted that the applicant had “been enrolled in [a] total of 15 unrelated courses”.

2. In support of his application to the Tribunal the applicant provided an Overseas Student Confirmation-of-Enrolment (CoE) confirming his enrolment in an Advanced Diploma of Hospitality Management which commenced on 21 August 2017 and was scheduled for completion on 15 December 2017 (proposed course of study).

3. No further or other information has been provided by the applicant to the Tribunal concerning the GTE criterion or his enrolment in courses of study.

Analysis and findings

1. 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.

2. The Tribunal is prepared to accept that the applicant’s proposed course of study is consistent with his current level of education.  It is also prepared to regard as plausible the applicant’s claimed connection between his studies in hospitality, fitness and management; however that plausibility is significantly eroded, in the circumstances, by his reliance upon generic descriptions of his claimed business plans and an overall lack of focus in his academic progression. Moreover, there is no evidence before the Tribunal as to how the proposed course of study will assist the applicant to obtain employment in Singapore.  Having been onshore for nearly eight years, the Tribunal is of the view that the applicant has had ample time within which to achieve his claimed study goals.  Accordingly, the tribunal places no weight on this factor in his favour.

3. The Tribunal accepts that, having lived in Australia for eight years, the applicant has sufficient knowledge of living in Australia.  There is, however, no specific evidence before the Tribunal as to the applicant’s knowledge of his intended course of study, though, as stated above the Tribunal accepts that there is a general consistency with his current level of education.  In all of the circumstances the Tribunal places little weight on this factor in the applicant’s favour.

4. Indeed, given the length of time that the applicant has been onshore, his recurrent enrolments in courses in the vocational education and training sector, his reliance on generic descriptions of his career goals and the overall lack of detail in his claimed business plans, the Tribunal is concerned that the applicant’s motives in undertaking further study are not what he claims them to be.  It appears to the Tribunal that the applicant now views Australia as a place to reside rather than as a place to progress in his studies.

5. In his application to the department the applicant states that he has completed his compulsory military service commitments in Singapore.  Save for this, there is no evidence or information before the Tribunal of any further military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia.  The Tribunal places some small weight on this factor in the applicant’s favour.

6. It appears from the information supplied by the applicant in his application to the department that his mother resides in Singapore and his brother in Canada.  The Tribunal accepts that these personal ties, in particular to his mother, provide some incentive for the applicant to return to Singapore.  Balanced against this is his decision to reside in Australia, apart from his family, for nearly eight years.  The Tribunal places some small weight on this factor in his favour.

7. There is no evidence before the Tribunal that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

8. The Tribunal has turned its mind, and had regard, to the following factors as a guide to assessing the GTE criterion in this case:

   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;

   b.     the applicant’s economic circumstances that would present as a significant incentive for him not to return to his home country (including consideration of the applicant’s circumstances relative to his home country and to Australia);

   c.     the applicant’s circumstances in their home country relative to the circumstances of others in that country;

   d.     the applicant’s ties with Australia which would present as a strong incentive to remain in Australia (including family and community ties);

   e.     whether the applicant has entered into a relationship of concern for a successful Student visa outcome;

   f.     whether the applicant is seeking to undertake a course that will assist the applicant to obtain employment or improve employment prospects in his home country;

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

9. There is no evidence or information available to the Tribunal in respect of these factors as they apply to guide a decision the applicant’s case. 

10. The Tribunal has had regard to all other relevant information provided by the applicant (or information otherwise available to the Tribunal) when assessing the applicant’s intention to temporarily stay in Australia, including information that may be either beneficial or unfavourable to the applicant. 

11. In weighing the available information the Tribunal has taken care to draw no inferences adverse or unfavourable to the applicant from any absence(s) of evidence or information.  That said, in the absence of evidence or information pertaining to a relevant factor or factors it is impossible for the Tribunal to weigh those factors in the applicant’s favour.

12. The little weight the Tribunal places on the absence of political or military unrest in the applicant’s home country, and his/her personal ties there, together with his/her compliance with previous visas and positive immigration history, knowledge of living in Australia and his family ties to Singapore is insufficient to dispel the Tribunal’s concern, for the reasons set out above, that the applicant is using the student visa programme to maintain ongoing residence in Australia rather than for the purpose it is intended. 

13. Overall, the evidence and information available to the Tribunal is insufficient to persuade it that the applicant meets the genuine temporary entrant criteria.

14. 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).

15. 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.

16. 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

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

Damian Creedon
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

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

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

3. 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

1. 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.

2. 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

1. 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

1. 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

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

2. 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

1. 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

1. 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.