Anju Bala (Migration)
[2019] AATA 4625
•28 February 2019
Anju Bala (Migration) [2019] AATA 4625 (28 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Anju Bala
CASE NUMBER: 1620180
HOME AFFAIRS REFERENCE(S): BCC2016/3764093
MEMBER:Meredith Jackson
DATE:28 February 2019
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 28 February 2019 at 2:26pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entry and stay – permanent resident of third country – incentives to return to birth country or third country, or to stay in Australia – legal proceeding with former husband in third country – children living in third country – no immediate family in birth country – concurrent partner visa application – married to Australian citizen – using student visa to remain in Australia pending outcome of partner visa application – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
CASES
Saini v Minister for Immigration [2015] FCCA 2379
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 November 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 November 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.
The applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The hearing originally set down for 5 December 2018 was rescheduled after the Tribunal agreed to a postponement request from the applicant arising from the fact that she was in Italy and was booked to depart for Australia on 24 December 2018.
The Tribunal also heard evidence at the hearing from the applicant’s sister, Ms Maju Bala.
The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Case summary
The applicant, Ms Anju Bala, is a 39 year old citizen of India who has permanent residency in Italy. She was awarded a Bachelor of Arts in India in 2012 and settled in Italy in 2014. She has two children from her first marriage and is now married to her second husband, an Australian citizen. Her children live with her mother and brother in Italy. She claims to have suffered domestic violence from her ex-husband who still lives in Italy. She first came to Australia for three months on a tourist visa in June 2015, and returned on a second tourist visa in September 2016. Soon after arriving the second time, Ms Bala applied for the student visa that is the subject of the review. Since then she has held three bridging visas and has studied English and vocational courses for a total period of approximately 22 months out of 24. Ms Bala has also applied for a Partner visa for Australia.
Oral and written evidence considered
The Tribunal has considered written submissions from the applicant, including:
a.The delegate’s decision
b.Submissions concerning her personal circumstances;
c.Identity documents for the applicant;
d.Certificates of Enrolment and academic transcripts and records;
e.An IELTS test report dated October 2016; and
f.Travel records for travel from Italy on 24 December 2018.
At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about her held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.
The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: her enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if she wished to seek further time to consider it. The applicant said she was prepared to comment on the information immediately after it was read to her and said she understood it and why it was relevant to his case.
The Tribunal noted there were two sets of entries in PRISMS for Ms Bala, and offered her the opportunity to ensure the records were correct. She confirmed that they were.
The Tribunal noted that the applicant had done two diploma courses in Leadership and Management and was planning to study in an advanced diploma in Hospitality Management and asked why she had changed discipline. Ms Bala responded that there were more job opportunities in hospitality in Italy and that her intent was to return to Italy.
The Tribunal noted that Italy had a good education system and asked why Ms Bala was not studying there. Ms Bala responded that she spoke Italian but there were many Australian tourists in Italy and she wanted to improve her English.
The Tribunal questioned Ms Bala about her family circumstances. She said her children were aged 10 and 11. Ms Bala said she had an ongoing court case with her former husband and had been advised to live separately from him. The Tribunal observed that it might have a concern that this was a significant disincentive to return to Italy and invited comment. Ms Bala stated that if she finished her diploma here and returned to Italy it would be good for her children’s future as well as her own. She had no family in India other than uncles and her family in Italy were very supportive, and her ex-husband lived some 1400 kilometres away.
The Tribunal observed that Ms Bala’s sister, with whom she lives here, is a citizen of Australia and asked whether Ms Bala had plans to remain in Australia beyond the current study plan. Ms Bala said she had no such intention.
At this juncture the applicant’s migration agent advised that Ms Bala had applied for a partner visa and he acknowledged that this could create a path to permanent residency. At this point the Tribunal questioned the applicant closely about her marital status and she confirmed that she was divorced from her first husband and now had a partner in Australia who was an Australian citizen. She had applied for the partner visa in 2018. Ms Bala later indicated the two had married. The Tribunal notes this visa was applied for offshore (Partner (Provisional) (subclass 309/100) on 16 October 2018.
The Tribunal asked what would happen in relation to Ms Bala’s partner if she returned to Italy in August, as she had claimed she would. Ms Bala said her husband was happy to move to Italy and the two would start their own business there.
The Tribunal said it could conclude that the student visa application was part of Ms Bala seeking to remain in Australia while she awaited the outcome of her partner visa application. Ms Bala stated that she had no such plans; she wanted to complete the proposed course and return home. Her status in Italy was as a permanent resident. The Tribunal asked whether this status allowed her Australian partner to join her in Italy and she said it did.
The Tribunal asked whether at the time Ms Bala first came to Australia she had lived with her sister and she confirmed she had. She had come here to help her through a pregnancy. She stated she had not intended to study on a tourist visa at that time. The Tribunal asked what changed, what made Ms Bala then decide to study here, as it would have been a big decision given her children were in Italy. She responded that it became clear to her the opportunities here meant she could gain a diploma and improve her English proficiency. The Tribunal raised that the delegate had been concerned that prior to arriving in 2016, she had done her research into courses while still in Italy. Ms Bala said she had no prior plan to study.
The Tribunal then heard evidence from the applicant’s sister, Ms Maju Bala, regarding Ms Bala’s visits as a tourist. She confirmed that the two did not discuss study until 2016, on the second visit, while Ms Bala was helping her run her business. Ms Bala’s intent at that time, she said, became to learn English to improve her opportunities in Italy. The Tribunal asked if English was spoken in the home she shared with her sister and she replied “not really”.
Conclusions
The Tribunal has considered Ms Bala’s submissions, her personal and academic circumstances and other relevant matters as specified in the Regulations and Direction 69. The Tribunal has considered and accepted, in particular, the advice of the applicant that beyond this application for a student visa, she has applied for an Australian Partner visa with her new husband, an Australian citizen. The Tribunal notes that this could lead to her gaining permanent residency in Australia. After careful consideration of all aspects, the Tribunal has concluded:
a.Ms Bala is seeking to remain in Australia while awaiting the outcome of her (subclass 309/100) Partner visa application and is using the student visa program as a means of doing so. She has advised the Tribunal, through her migration agent, that she is seeking the Partner visa with her new husband, an Australian citizen, as sponsor. The significance of this is that at the time of this decision, Ms Bala is seeking temporary and ultimately, permanent residency here while claiming to be a genuine temporary entrant. Further, if Ms Bala is successful in being granted a permanent Partner visa, she will be in a strong position not only to remain here herself, but to bring her children, and possibly other family, to Australia. The Tribunal is aware that the intent of the Student visa program is that the applicant is a genuine student who progresses academically, while the Regulations require that the applicant intends genuinely to stay in Australia temporarily. In considering the significance of the Partner visa application, and in forming its view, the Tribunal has taken into account the authority in Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379, in which the Court held that if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”.
b.Ms Bala is not convincing when she argues that even if she were granted permanent residency here, she and her new husband would return to Italy and open a business there. The Tribunal is not convinced as to the likelihood of this. Ms Bala has significant disincentives to return to Italy, including that she claims to have suffered domestic violence from her former husband, who still lives in Italy, the parties are involved in an ongoing court dispute, and the Italy is not her country of citizenship. She acknowledges that she has few relatives in India, so the Tribunal concludes she is unlikely to head there. For the Tribunal, these factors together demonstrate the likelihood of her choosing to live in Australia rather than India or Italy long-term. If granted a permanent visa, Australia would be where she and her close family have residence: her husband, an Australian citizen, her sister, an Australian citizen, and potentially, her children and extended family.
c.Ms Bala has persuaded the Tribunal she came to Australia as a tourist in 2015, but has not convincingly demonstrated that she returned only as a tourist a year later without an underlying plan to remain here. Ms Bala claims, and her sister supports, that she had no prior intention of studying when she visited Australia the second time. Yet within a month of arrival she had done her course and visa research, undertaken an IELTS English test, and in another month, applied for a student visa. The Tribunal considers it unlikely a person with young children and ties to Italy would travel to Australia on a tourist visa and decide, on the spot, to stay here rather than return home to her young family. It is more likely she had a prior intention or arrangement to remain in Australia for an extended period as a student and perhaps as a permanent resident spouse. The Tribunal notes Ms Bala did not return to Italy to visit her children for two years until in October 2018. The Tribunal concludes the applicant did have a prior intention to remain in Australia when she left Italy, and was planning to use the Student visa program as a first step towards extended stay here when she entered on a tourist visa.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Meredith Jackson
MemberDIRECTION 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Intention
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Natural Justice
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Jurisdiction
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