1932561 (Migration)

[2021] AATA 1782

1932561 (Migration) [2021] AATA 1782 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932561

MEMBER:Noelle Hossen

DATE:9 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 09 April 2021 at 4:19pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – documentary evidence provided but no appearance at hearing – non-completion or non-commencement of courses – gap in enrolment – death of grandmother and involvement in car accident – friends in Australia and large and close family in home country – vague plans for future employment – decision under review affirmed

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 12 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant provided the Tribunal with a copy of the Reasons for the Decision of the Delegate of the Minister for Home Affairs.

5. The applicant was provided with an invitation to attend the hearing but chose not to attend.

6. The Tribunal provided the applicant with a letter inviting him to provide further information to the Tribunal prior to the hearing.

7. The applicant responded and provided the Tribunal with various documents including but not limited to the Request for Information Form, submissions to the Tribunal, current certificates of enrolment and health insurance information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)

10. 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?

11. 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.

12. 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.

13. The applicant was born on [Date] in India.

14. The applicant arrived in Australia on [in] February 2017.

15. The applicant provided evidence that he has a large family in India consisting of his parents, sister and grandfather. He returned to India to visit his family in February 2019. He says that he calls his family and friends daily on social media or telephone. The applicant appears to have close family ties with his family in India and the Tribunal finds that this is likely to provide the applicant with a significant incentive to return to India at the end of his studies.

16. The applicant did not progress satisfactorily in his studies initially when he arrived in Australia. He was enrolled to complete a Master’s in Accounting at [a University] and was enrolled to undertake a course being English for Academic Purpose. He did not commence the studies in both courses.

17. In the delegate’s decision dated 12 November 2019 the delegate found as follows:” On 30 January 2017 the applicant was granted a TU 500 to study a Master of professional accounting at [a University]. According to PRISMS records they did not commence any of the enrolled English courses despite their claims that they have made regarding the difficulty of studying in a second language. According to Departmental records, the applicant arrived in Australia as the holder of TU 500 Visa [in] February 2017 and changed to a Diploma of Human Resources and Management at [an Institute of Management] on 6 March 2017 but then did not complete this course due to unsatisfactory course progress with their last day of study being 12 June 2017.”

18. The delegate found further as follows: “The applicant also had a period of 10 months from 12 June 2017 to 30^th of April 2018 while not undertaking any study. This was a breach of Visa condition 8202, which was attached to their student Visa. On 8 October 2019, the applicant was provided with an opportunity to comment on the possible breach of condition 8202. On 1 November 2019 they provided a written response advising that: In relation to the study gap; they claim that their maternal grandmother passed away and therefore they were in grief and did not attend college. They provided a medical certificate from a doctor to cover the period from July to November 2017 and submitted a school holiday letter for the period December 2017 to January 2018.However, I find that the concern study gap was during the period from June 2017 to April 2018, and the applicant cannot demonstrate concrete evidence to support their claims.”

19. Apart from a letter to the Tribunal stating that he was grieving the loss of his grandmother and that he had a car accident the applicant did not attempt to provide further information to the Tribunal. The fact that he decided not  to attend a hearing makes it difficult for the Tribunal to asses the evidence .It is noted that the applicant did not contact the Department to explain his difficulties at the time that he did not study.

20. At the time of writing this decision the applicant has been in Australia for a period of 3.5 years and has not been able to show that he has progressed academically. He did not provide to the Tribunal with any evidence of completion of any of the Courses that he has undertaken since his arrival to Australia. The Tribunal did not sight any any Certificates or Diplomas that he has achieved whilst in Australia.

21. Even if a period was allocated to grieve the death of his grandmother and to get over the accident that he was involved in, the time lapse for progressing in his studies remains significant and unexplained. There is no excuse for not complying with the conditions of his visa other than those 2 reasons put forth by the applicant. He did not provide the Tribunal with any evidence that he has sought psychological counselling.

22. Save and except for the documents provided to the Department to cover a period from July 2017 to November 2017, being a medical certificate and a school holiday period from December 2017 to January 2018 there was no further evidence provided for 2018,2019 and 2020 containing medical evidence relevant to the issues. The Tribunal has not accepted the applicant’s assertions regarding the reasons why he could not progress academically.

23. The applicant does not appear to have completed any courses which would provide him with better employment opportunities in the future in his home country or any other country to date in Australia.

24. He stated in his written evidence lodged at the Tribunal as follows: “I will apply for jobs in India in metropolitan cities like Delhi and Mumbai and gain work experience as a business analyst, risk analyst and business development manager. I will start with assistant roles and will work hard to get promotion to manager roles and there after gaining confidence I will help my father to grow his business in India.”

25. The evidence supplied and contained in paragraph 24 above is general and inconsistent with his present position. He is due to finish a Certificate IV in Business in May 2021.He does not give details of the industry that he plans to seek employment in, in India. The information supplied does not satisfy the Tribunal that the applicant has a definite plan to obtain employment in India and it does not appear that he has researched the market in India. The Tribunal places weight against the applicant’s case for the fact that he has provided less than satisfactory evidence to the Tribunal in respect of his future prospects of employment in his home country.

26. He made his current Visa Application in August 2019.

27. If the student Visa, that is the subject of this review, is granted with a prospective end date of October 2023, the applicant will have been onshore as a temporary Visa holder for more than six years. In the Tribunal’s view, his academic history is less than satisfactory. The Tribunal places a lot of weight against the applicant’s case because of the fact that he has not progressed academically since his arrival in Australia.

28. The Tribunal ‘s strongly held view is that the applicant is motivated to remain in Australia to work until such time as he can find a pathway to a more permanent arrangement. The applicant stated in his written evidence that he is presently working part-time and earning approximately $36,400 per year. His expenses are $24,600 per year.

29. The Tribunal is not satisfied that the applicant is not simply proposing further short inexpensive courses in order to gain a student visa with the primary objective of maintaining ongoing residence in Australia.

30. The applicant provided evidence that he has a solid group of friends in Australia. The Tribunal is satisfied that the applicant has developed friendships in Australia and that his social connections may serve as an incentive for him to wish to remain in Australia.

31. There is no relevant information regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

32. The applicant stated in his written evidence that there are no reasons as to why he cannot return to live in India, as he does not have any issues concerning political and civil unrest in India. He does not have to undertake military service in his home country.

33. The Tribunal does not make any adverse findings against the applicant’s case in relation to his compliance with visa conditions or prior immigration history. The applicant told the Tribunal that he does not have a visa history outside of Australia/India. The Tribunal accepts this and makes no findings concerning the applicant’s immigration history outside of Australia.

34. In all the circumstances the Tribunal does not accept  the applicant’s written assertions claiming to be a genuine student

35. 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).

36. 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.

37. 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

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

    Noelle Hossen
    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.