Aujla (Migration)

[2019] AATA 541

Aujla (Migration) [2019] AATA 541 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rupinder Kaur Aujla
Miss Amanat Kaur

CASE NUMBER:  1718026

HOME AFFAIRS REFERENCE(S):           BCC2017/1030949

MEMBER:E.Tueno

DATE:21 February 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 February 2019 at 9:35am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – invitation to provide further information – no response – not entitled to appear before the Tribunal – length of time in Australia on student and bridging visas – utility of proposed study in obtaining employment – incentives to return – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 August 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).  The secondary applicant, Amanat Kaur, is the primary applicant’s 3 year old daughter. 

2. The applicants applied for the visas on 15 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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). The delegate was not satisfied that the primary applicant intended to genuinely stay temporarily in Australia. In the case of the secondary applicant, Amanat Kaur, the delegate refused to grant a visa on the basis that the applicant did not satisfy the requirements of cl.500.311 of Schedule 2 of the Regulations.

4. On 11 January 2019, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal.  The Tribunal did not receive any response to that written invitation. 

5. The Tribunal is satisfied that the review applicants were properly sent an invitation to provide further information under section 359(2) of the Act.  The invitation was sent to the review applicants’ migration agent, Mr Suraj Handa of Handa Immigration Specialists, being the address provided by the review applicants in connection with this application for review.

6. Where an applicant is invited to provide further information under section 359(2) of the Act and fails to provide that information within the prescribed period, the Tribunal may make a decision on the review without taking any further action: section 359C(1) of the Act.

7. The Tribunal finds that the review applicants did not provide further information as requested.  In these circumstances, the review applicants are not entitled to appear before the Tribunal: section 360(3).  The effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

8. It is appropriate to highlight that a decision maker is not required to make the applicant’s case.  It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met.  Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

9. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. 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.

13. The requirements to be satisfied by an applicant who is a member of the family unit of a person who satisfies the primary criteria are set out in Clause 500.311, which states as follows:

    The applicant is a member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa, and either:

    (a)the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:

    (i)          the primary person’s application under subregulation 2.07AF(3); or

    (ii)information provided in relation to the primary person’s application under subregulation 2.07AF(4); or

    (b)         the applicant became a member of the family unit of the primary person:

    (i)          after the grant of the student visa to the primary person; and

    (ii)         before the application was made.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. 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.

15. 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.

16. The primary applicant in this case is a 32 year old Indian national who first arrived in Australia on 23 September 2009 on a student dependant visa subclass 573, according to the delegate’s decision record.  Since then, the applicant has been granted 4 student visas.  The visa application the subject of this decision is the applicant’s fifth student visa application.

17. According to the application for student visa, the applicant has completed the following courses in Australia:

    ·   General English course at KAPS Institute of Management

    ·   Certificate IV in Frontline Management at KAPS Institute of Management

    ·   Advanced Diploma of Management at KAPS Institute of Management

    ·   Certificate III in Commercial Cookery at Technical Institute of Victoria

    ·   Certificate IV in Commercial Cookery at Technical Institute of Victoria

    ·   Diploma in Hospitality at Technical Institute of Victoria

    ·   Diploma of Marketing at Angad Australian Institute of Technology

    ·   Advanced Diploma of Marketing at Angad Australian Institute of Technology

18. At the time of the application to the Department, the applicant was enrolled in a Diploma of Hospitality Management at Acumen Institute of Further Education (‘Acumen’).  There is no information before the Tribunal as to whether the applicant continued with this or any other study after the delegate’s decision.  The Tribunal therefore cannot conclude further in relation to her recent academic progress in Australia.

19. In an undated statement entitled ‘statement of purpose’ provided to the Department as part of her application for a student visa, the applicant claims to want to undertake the Diploma of Hospitality Management because she wants to become a service manager in a hospitality establishment in India and to pursue a career in hospitality.  She states she wanted to study at Acumen because of its proximity to Melbourne CBD, the theoretical and practice components as well as being registered for international students.  She also claimed that Acumen offer vocational placement.  She further stated that her studies would be recognised anywhere in the world and that she wants to study this course in Australia because the language requirements are not as high as in other countries

20. In her statement, the applicant confirms her intention to return to India and pursue a career as a service manager in ‘some highly reputed hospitality organisations’ so that she will have an opportunity to earn a good salary.  Lastly, the applicant also states that she has been employed in Australia at ‘Indian Chimney Restaurant’ as a restaurant manager. 

21. The applicant is proposing to study a Diploma of Hospitality Management after having already completed a Diploma in Hospitality and in Marketing as well as an Advanced Diploma of Management.  Having regard to the applicant’s course history of past studies and where she is at in her career presently, the Tribunal is not satisfied the study proposed will assist her in obtaining employment or improve her employment prospects.  This finding is based on the lack of any persuasive evidence from the applicant about how this course offers to provide anything above and beyond her previous studies.  Based on the evidence before it, the Tribunal considers that the Diploma of Hospitality Management would be of marginal assistance on the back of at least 7 years of hospitality and management studies.

22. The Tribunal acknowledges that the applicant’s parents and siblings live in India and this presents a strong incentive to return to her home country of India.  However, the Tribunal also notes that since coming to Australia in 2009, she has gone on to give birth to her daughter her in 2015.  When considering these factors, the Tribunal is not convinced that the applicant’s family ties in India serve as a significant incentive to return. 

23. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: whether the applicant has reasonable reasons for not undertaking the study in India, her specific economic circumstances, any potential military service in India, political or civil unrest circumstances in India, the applicant’s ties to Australia, remuneration that the applicant could expect to earn in India or whether the applicant has experienced visa refusal or immigration issues in any other country.

24. 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.  However, given the length of time the applicant has been in Australia on student and bridging visas, the Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence.

25. Having not provided additional information to the Tribunal as requested, the applicant must rely on the previous assertions made by her to the department.  In all the circumstances, the Tribunal does not accept the applicant’s assertions claiming to be a genuine temporary entrant.

26. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore the applicant does not meet cl.500.212(a).

27. 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.

28. Given the above findings, the Tribunal finds that in relation to the primary applicant, Rupinder Kaur Aujla, 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 in relation to Rupinder Kaur Aujla must be affirmed.

29. As the Tribunal is not satisfied that the applicant, Rupinder Kaur Aujla, has met the primary criteria under cl.500.212, it is not satisfied that her dependant family member, Amanet Kaur, has met the secondary criteria under cl.500.311. Accordingly, the decision under review in relation to Amanet Kaur must be affirmed.

    DECISION

30. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    E. Tueno
    Member