Zahwa (Migration)

[2019] AATA 1894

Zahwa (Migration) [2019] AATA 1894 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rami Zahwa

CASE NUMBER:  1805115

HOME AFFAIRS REFERENCE(S):           BCC2018/505026

MEMBER:Stephen Conwell

DATE:21 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

· cl.500.212 of Schedule 2 to the Regulations.

Statement made on 21 March 2019 at 6:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – circumstances in home country – father’s work and business connections – employment and business opportunities – study history – deferral of studies – legitimate health reasons – depression – actively participated in mental health plan – decision under review remitted

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 23 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 30 January 2018. 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 delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. On 26 February 2019 the Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 26 March 2019. On 15 June 2018 the applicant provided further evidence and written submissions.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicant was assisted in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is a 23-year-old male citizen of Lebanon. On 30 January 2018 he applied for the visa which is the subject of this review. His application was refused on the basis that the delegate was not satisfied that he was a genuine temporary entrant, as required by clause 500.212.

9. The delegate’s decision noted that the applicant had been granted two previous Student visas since making his initial application in 2014. Further he had applied for and was granted, a deferral from his Bachelor of Engineering Technology (Telecommunications) studies and has therefore taken longer than was initially intended to complete his studies. The delegate concluded that the applicant’s study history and personal circumstances suggested that he was not a genuine temporary entrant.

10. The applicant’s representative submitted a detailed submission to the Tribunal, dated 7 December 2018 (‘Submission’). A request for ‘priority processing’ of the application was also submitted on the grounds that the applicant had only three study units remaining in his course, which he intends to complete by Trimester 1 of 2019.  The Tribunal granted the request for ‘priority processing’.

11. The representative enclosed the following supporting documents with the Submission:

    ·       Copy of the applicant’s statutory declaration, declared on 20 November 2018;

    ·       Copy of the Department of Home Affair’s refusal decision dated 23 February 2018;

    ·       Copy of CoE Certificate from MIT;

    ·       Copy of letter from MIT approving deferral from studies on compassionate grounds, dated 12 January 2018;

    ·       Letter of support by MIT student counsellor Ms Marika Drougas, dated 26 November 2018;

    ·       Letter of support by MIT careers advisor, Mr Jarden Nathaniel, dated 27 November 2018;

    ·       Medical certificate from GP, Dr Chris Kozlovski, dated 31 August 2018;

    ·       Academic Transcript from MIT, from 2014 until 7 August 2018;

    ·       Letter of enrolment from MIT, dated 6 August 2018;

    ·       Letter of offer from MIT, dated 19 September 2013.

12. Given the Submission and supporting documents the Tribunal finds that it has more evidence and information than was available to the delegate, upon which to base its decision.

13. 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 intends genuinely to stay in Australia temporarily.

    Genuine applicant for entry and stay as a student (cl.500.212)

14. 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?

15. 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.

16. 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’s circumstances in his home country

17. The applicant’s parents divorced when he was a child, but both remain in Lebanon; he has three half-sisters, also residing in Lebanon. His brother lives in Australia and has applied for permanent residence. Notwithstanding his brother’s presence in Australia and application for permanent residency, the Tribunal accepts the submission that the applicant has sufficient incentives to return to Lebanon upon completion of his studies - his father’s work and his business connections offer the applicant opportunities to establish his own career and despite ongoing political and security risks, the applicant’s personal and family circumstances in Lebanon appear to be comfortable and stable.

18. The applicant has provided details of employment and business opportunities in Lebanon and the Tribunal accepts that applicant’s Australian qualifications and English language skill would be assets for him on his return there.

19. The Tribunal accepts that the applicant’s family connections and employment opportunities in Lebanon are significant incentives for him to return there at the conclusion of his studies in Australia.

    The applicant’s potential circumstances and study history in Australia

20. The applicant’s brother resides in Melbourne and has applied for permanent residence. The applicant has lived with his brother during his time in Australia. The Submission claims that despite this, the applicant has limited community and family links in Australia. Indeed, his lack of a significant social support network in Australia was likely to have contributed to his depression and study issues in recent years. On balance, the Tribunal is prepared to accept this submission and finds that the applicant has no significant incentive to misuse the Student visa program to maintain ongoing residence in Australia.

21. The Tribunal accepts that the applicant’s education provider, Melbourne Institute of Technology (MIT) had approved each of his deferral requests for legitimate health reasons and in accordance with university policy.  The Tribunal has regard to the statements by a MIT student counsellor and a career advisor which have been tendered in evidence.  The Tribunal makes no adverse findings with respect to the applicant’s study history in Australia.

    Value of the course of the applicant’s future

22. The applicant has provided evidence of a growing telecommunications sector in Lebanon, which the country is seeking to foster. The applicant is studying towards a Bachelor of Engineering Technology (Telecommunications) and has now completed all but three units of the course.  Should his visa be granted he expects to complete these remaining units by the end of Trimester 1 of 2019. 

23. The Tribunal accepts that attaining this bachelor degree from Australia would give the applicant a competitive advantage in the burgeoning telecommunications sector in Lebanon. The Tribunal finds that the applicant’s nearly completed studies are relevant and of considerable value to his career goals upon his return there.

    The applicant’s immigration history

24. The applicant arrived in Australia in February 2014 on a Student 573 valid until 15 March 2017. He was granted a further Student (Class TU) (subclass 500) visa valid until 1 February 2018 on 1 September 2017.  On 30 January 2018, he applied for a further Student (subclass 500) visa which is the subject of this merits review.

25. On the evidence the Tribunal accepts that the delay in completing his bachelor degree was essentially caused by the applicant’s onset of depression and its associated symptoms. The Tribunal finds it was reasonable in the circumstances for the applicant to seek medical attention and on the basis of medical advice, to request a deferment of his studies.   It was on the basis of his medical advice and treatment that MIT granted the applicant’s request for deferment of his studies. 

26. The Tribunal accepts that the applicant has remained continuously enrolled in his courses since his arrival in Australia in 2014. In the context of his personal circumstances the Tribunal draws no adverse conclusions from the fact that the applicant has remained onshore since his first arrival. Similarly the Tribunal draws no adverse conclusions from the fact that the applicant was employed full-time during his periods of study deferral, since he actively participated in his mental health plan, which encouraged his continuing engagement with activities outside of his studies.

27. On the basis of the evidence before it, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

28. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

29. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    · cl.500.212(a) of Schedule 2 to the Regulations.

    Stephen Conwell
    Member

    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:

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

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

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

    f.whether 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

    g.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;

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

    ii.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

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    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.