Wickramasinghe (Migration)

[2019] AATA 3521

Wickramasinghe (Migration) [2019] AATA 3521 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mithila Nelson Wickramasinghe

CASE NUMBER:  1806369

HOME AFFAIRS REFERENCE(S):           BCC2017/4769929

MEMBER:Peter Booth

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2019 at 11:45am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – medical condition – length of proposed additional stay – value of course – career plan – income disparity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 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 December 2017.  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The applicant gave evidence at the hearing the substance of which was follows.  The applicant arrived in Australia on 18 February 2012 as the holder of a Subclass 573 (Student) visa. It was his intention to study a Bachelor’s degree in Hospitality Management. He said that he had completed that course “last year” and that he had not studied for a period after 2014.  He said that in about July 2014 he had contracted a “skin rash” which ultimately extended over his body including his face. He gave evidence that he informed the university that he could not study, and that the university had agreed to a deferral until 2015.  He gave evidence that he did not receive any written confirmation of the deferral.

11. When the applicant went to enrol in 2015, he was informed by the university that his enrolment had been cancelled.  He gave evidence that he was unaware of the cancellation prior to this time and that it was his understanding that he had deferred the course.  He was told that the Notice of Cancellation had been sent by email but he gave evidence that he did not receive it. He went on to say that his email address had not changed during the relevant time. He said that thereafter he applied to several other universities, and indeed had received three offers of placement, from University of Central Queensland, Holmesglen TAFE and the Box Hill Institute. These offers were received on or about 27 April 2015. He determined to accept the offer from Central Queensland University but on about 10 July 2015 the university withdrew the offer and told him that it had been made erroneously.  He was not able to explain why. He said that he received a letter from the institution but it was not in his possession at the hearing. He said that he would obtain a copy of the letter and provide it to the Tribunal within seven days.  On 14 August 2019, the applicant provided several documents to the Tribunal. The first document was a confirmation that his enrolment had been cancelled. The course was a Bachelor of Hospitality Management degree at Central Queensland University. The course end date was stated to be 5 June 2015. It is not clear if that date is the date of cancellation. The document is undated. The second document was an extract from the Provider Registration and International Student Management System (PRISMS) which stated that the applicant’s enrolment in the Bachelor of Hospitality Management degree at Central Queensland University was cancelled, effective from 6 June 2014. The third document was another extract from PRISMS which stated that the “student notifies cessation of studies … 04/08/2014”. None of these documents relate to the point which the applicant was seeking to make, namely that the Offer of Enrolment is a course at Central Queensland University had been unilaterally withdrawn on or about 10 July 2015. The Tribunal gives them little weight.

12. During the hearing, the applicant also provided the Tribunal with a letter dated 15 July 2015 from Central Queensland University, which stated that his enrolment had been cancelled due to unsatisfactory academic performance. The Tribunal enquired why this would be the case if the applicant had been informed in about February 2015 that his enrolment had been cancelled due to non-attendance during 2014. The applicant was unable to explain this discrepancy.  

13. At all events the applicant said that he did not contact Central Queensland University upon receipt of the letter dated 15 July 2015.  He said that he had applied for another visa in about August 2015 because his then visa was about to expire. This application was refused and he applied to this Tribunal for review. That application was heard and determined in his favour on 9 March 2016 (proceeding number 1514789). In that decision the applicant’s medical history, various circumstances and study history were traversed. The Tribunal accepted the applicant’s evidence in relation to his medical condition, that he was unable to study for an extended period of time and that these events had a profound effect upon his ability to focus on his studies. The applicant was found to be a genuine temporary entrant. The Tribunal also commented that “…any proposal to study beyond the current course, in my view is to be the subject of a further student visa application. Similarly the applicant expressed his understanding that a future lack of academic progress may cause the Department to cancel his visa”.   For the purposes of this hearing, the Tribunal accepts that the applicant had some medical condition which affected his ability to study from about July 2014 to early 2015. However having regard to the decision in proceeding number 1514789, it is most relevant to consider the facts after that decision.

14. The applicant said that he was granted a further student visa on 9 September 2016 and that he had studied a Bachelor of Hospitality Management at Kaplan Business School. He said that he was failing a few subjects mainly because they were group assignments and that the other students would not participate. The applicant gave evidence that following his father’s advice, he went to the Box Hill Institute in about February 2017 and applied for a position in the Bachelor of Hospitality Management course, however, the institution would give him no exemption for previous studies.  He was informed that he could apply for such an exemption at a later time and undertook four subjects which he passed.  Apparently then the institution would not give him the exemption for previous subjects studied at a different institution.  The applicant did not explain why this was so.  In about December 2017 while his visa was expiring he still had three subject to remaining to be completed. He applied for a visa extension of five months. He said that he did not give the Department any information because he thought that the Department “had it all” from the previous application. His application was refused. In 2018 he completed the Bachelor’s degree course and is currently enrolled in an Advanced Diploma of Accounting which he commenced on 5 August 2019.

15. In answer to a question from the Tribunal he said that between 5 July 2018 and 5 August 2019 he had not been enrolled in a registered course of study because he had had an accident. He had fainted and came in contact with a heater and as a result, had received facial burns. He produced contemporaneous photographs of the injury.  He said and that he received medical treatment for the injury but that it took between four and five months to be resolved.  He did not produce any medical opinion evidence but he did produce some invoices for treatment which appeared consistent with the injury. The Tribunal observed that this injury had not been mentioned by his migration agent in a submission to the Tribunal received on or about 26 April 2019. The applicant informed the Tribunal that he had not told his migration agent of this matter.  Whilst the Tribunal accepts that he did indeed suffer facial burns, it is curious that this matter was not mentioned to his migration agent at the relevant time.  The Tribunal does not give it great weight.

16. The Tribunal enquired of his intended future employment to which he was responded he intended to work in hospitality as a manager. The Tribunal then enquired why he needed to undertake an Advanced Diploma in Accounting. He said that as a hospitality manager one needs to understand accounting matters. In response to some questions from the Tribunal he said that he had studied accounting whilst at school for approximately two years, had studied an accounting unit in the Bachelor of Hospitality Management, and studied an accounting unit in the Diploma level course as well. The Tribunal enquired why he needed to undertake further advanced studies in accounting. He said that he was “not good with numbers” and that a manager needed to be able to undertake “three-way balancing and end of month balances”.  The Tribunal does not accept that this further accounting study is necessary for his future employment particularly having regard to his past accounting studies.

17. The applicant gave evidence that his immediate family members in his home country comprise his father and brother. His sister resides in Singapore.  He said that he or his family had assets in his home country but could not estimate the value. He said that he intended to open a boutique hotel upon his return to his home country and that he had the capital to do so. However he could not provide an estimation of the capital required to open a boutique hotel. The applicant also produced a letter from a Sri Lankan bank which stated that he had various monies on deposit with that bank.

18. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with clause 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

19. The Tribunal has considered the applicant’s circumstances in his home country.  The applicant is unmarried and is from Sri Lanka.  The applicant has provided evidence of direct family ties to his home country. His parents, brother and sister reside in Sri Lanka.  The applicant has not provided any evidence of any other ties to Sri Lanka.  When considering the applicant’s circumstances his home country, the Tribunal therefore finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the proposed study.  While the Tribunal accepts that the applicant may have family ties to Sri Lanka, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to Sri Lanka.

20. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia on 18 February 2012 as a holder of a Subclass 573 visa. He intended to study a Bachelor of Hospitality Management.  The proposed study would extend the applicant’s stay until at least June 2021.  The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia.

21. The Tribunal does not place great weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  His assertions of opening a boutique hotel business were vague and unconvincing.  The Tribunal has considered the applicant’s study history since arrival.  He commenced study in 2012 and has only completed his study in 2018.  He now intends to study accounting for the next three years.

22. The Tribunal notes that this course plan is inconsistent with his study plans when he initially entered Australia. The applicant now wishes to pursue an advanced accounting course in Australia.  The course is asserted to have relevance to very vague future plans. 

23. The applicant has provided a statement from his migration agent in which he attempts to address the genuine temporary entry criterion.  The applicant claims that he will gain value from the accounting course because he wishes to work in hospitality in his home town.  This vague assertion is given little weight. 

24. The Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study.  The Tribunal is therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future beyond the qualifications already holds.  Whilst the tribunal accepts that plans can change, this is not the conduct of a genuine student.  Rather, it suggests the applicant has decided to extend his stay in Australia by utilising the Student Visa Programme.

25. The Tribunal has given regard as to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

26. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

27. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between Sri Lanka and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to Sri Lanka.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to Sri Lanka.

28. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.  On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

29. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

30. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in Sri Lanka; political or civil unrest circumstances in Sri Lanka; remuneration the applicant could expect to receive in Sri Lanka or a third country compared with Australia; circumstances in Sri Lanka relative to Australia or any other country; and the applicant’s circumstances in Sri Lanka relative to others in that country.

1. 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).

2. 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.

3. 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

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

   Peter Booth
   Member