Bharne (Migration)

[2019] AATA 2263

Bharne (Migration) [2019] AATA 2263 (10 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sameer Bharne

CASE NUMBER:  1723105

HOME AFFAIRS REFERENCE(S):           BCC2017/1475020

MEMBER:D. Triaca

DATE:10 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 May 2019 at 11:48am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– breached condition 8202 – applicant downgraded courses of study – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218

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 14 September 2017 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 23 April 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

4. The applicant appeared before the Tribunal on 1 May 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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?

9. 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.

10. 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.

11. The applicant is 33 years old. He first arrived in Australia on 25 September 2006. He returned to his home country in December 2009 for a period of about 4 years. He returned in 2013 and he has not travelled outside Australia since. His immigration history is otherwise unremarkable.

12. The applicant applied for a student visa on 23 April 2017. At the time of the application, the applicant was enrolled to undertake a Diploma of Business course and an Advanced Diploma of Business. The applicant’s visa was refused by the delegate of the Department on 14 September 2017. On 26 September 2017, the applicant lodged his application with the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision.

13. The Tribunal has read and had regard to documentation provided to the Department by the applicant including Application for a Student Visa (df1-15); PTE Academic Report (df 16); passport extracts (df16-17); Academic Transcript and correspondence Federation University Australia (df19-23); Certificate and transcript Marjorie Milner College (df 24-25); Academic qualifications University of Ballarat(df 26-29); confirmation of health cover (df 30-32); Bridging Visa (df 33-37); Delegate’s decision (df 43-51).

14. The applicant did not provide a statement addressing the Genuine Temporary Entry (GTE) criteria. In his application for a Student Visa he stated, “I want to acquire some skills in business filed for my future endeavour.”

15. The Tribunal wrote to the applicant seeking information pursuant to section 359(2) of the Act on 6 March 2019. The applicant’s representative sought an extension of time by letter dated 20 March 2019. By letter dated 22 March 2019, the Tribunal granted the applicant an extension of time until 29 March 2019. On 28 March 2019, the applicant provided the Tribunal with a written response to the request for further information (359 Response). The Tribunal has read and had regard to the applicant’s 359 Response.

16. Since arriving in Australia, the applicant has enrolled in and completed a Diploma of Business at GEN Institute, Advanced Diploma of Management (HR) at NTCA, Master of IT Management at Federation University, Bachelor of Information Systems at University of Ballarat. He has also enrolled in and not completed a Diploma of Business and an Advanced Diploma of Business.

17. In his oral evidence, he stated, he did not complete the courses in business because it did not make sense to do so in circumstances in which his visa application had been refused by the Department and he did not know if the visa would ultimately be granted. The proposition here is that if a choice is made to continue studying, the effort and fees that go into that might ultimately not yield a qualification.

18. The delegate’s decision records that the applicant’s proposed time frame for completing the Diploma of Business course was 11 February 2018 and the Advanced Diploma of Business was 22 February 2019. On the applicant’s timetable, he could have finished both those courses by the date of this decision had he continued his studies. Tribunal considers that the applicant has in this case made a choice not to study, when there was no legal bar to studying, suggesting that the applicant might be more interested in the substantive student visa, than in the study itself.

19. In his 359 Response, the applicant states his parents and sister are resident in India. He says he last saw them in September 2013. He says that he keeps in touch with them via phone, Skype and social media approximately 3 – 4 times per week. He lists his cousins and peer family members as examples of other family members in India. The objective evidence is that the applicant has resided in Australia, with one extended break, since 2006 and this includes the last six years uninterrupted. The applicant has managed to maintain his relationships with his family in India over that time via telephone and social media and in these circumstances, the Tribunal finds that the applicant’s ties to his home country do not operate as a significant incentive to return home.

20. The applicant says he has no community ties to Australia. However, he attended the hearing with his girlfriend and said in his evidence that they had been dating since 2013. When asked about his future path, he says that he is wanted to return home to start a business but he felt he was “stuck in the middle of nowhere” and was “confused” about his next step noting that he had a girlfriend and he was considering other visa options. In circumstances in which the applicant has been dating his Australian girlfriend for five years, in the context of his residing in Australia for approximately a decade, the Tribunal finds that the applicant‘s ties to Australia operate as a strong incentive to remain.

21. The Tribunal also recognises that the United Nations classifies India as a ‘medium human development’ country, ranking it 130^th in the world by the United Nations Human Development Index, whereas Australia is classified as having ‘very high human development’ and is ranked third[1]. It is an objective measure that provides a further basis for being concerned that the applicant’s visa application may have been primarily by the more general economic opportunities, rather than the specific educational opportunities to which his visa application refers, that staying in Australia may represent.

    [1] United Nations Development Program, Human Development Indices and Indicators: 2018 Statistical Update (UNDP, 2018).

22. The applicant states that he currently works 19 hours per week at Coles in Lara on a part time basis. He has worked there since 2015 and earns approximately $400 per week. There is no evidence before the Tribunal in respect of the applicant’s economic circumstances in his home country. The applicant does state that his parents own property in Bhopal India to the value of $340,000 AUD. However, this property is not in the applicant’s name and whilst there is expectation that he will inherit this property, it is not his asset at the moment. In any event, the Tribunal considers that property could be readily sold or rented out to produce an income. The holding of such property is no effective incentive to cease residence in Australia.

23. The applicant states that he intends to return to India and start an IT related business. He says he hopes to learn “tricks and techniques” and “real information about HR” and how business works. He says that he has financial supporters in India. In his 359 Response he states that he intends to “use my knowledge what I learnt from my management courses to manage, to set up my own business where my core financial supporters would be my sister and parents.“ The Tribunal is concerned that despite having lived for a significant period of time in Australia, the applicant’s future plans are not well developed.

24. He stated that when he returned to India in 2009 he became involved in an IT related business in India in partnership with a friend whom he subsequently fell out with. He then obtained work in another IT related company ERT Solutions as a systems analyst in India before returning to Australia to continue his studies.

25. At the hearing of his application, the applicant provided the Tribunal with a Certificate of Enrolment (CoE) for a Diploma of Business commencing on 15 May 2019. The provider is M.S Aviation trading as Australian School of Commerce. The Tribunal does not accept that a Diploma of Business will assist the applicant obtain employment or improve his employment prospects in his home country. Objectively, the proposed course of study is of limited value to his future in circumstances. He has previously obtained a Bachelor of Information Systems and a Masters in IT Management at a higher level than the study at vocational level now being proposed. The university degree course is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges. It follows that the Tribunal does not consider that the proposed study will really assist the applicant to obtain employment or improve his employment prospects in India and in these circumstances the Tribunal does not consider that the proposed study will increase the remuneration the applicant could expect to receive in his home or a third country.

26. It is of concern to the Tribunal that the applicant has downgraded his courses of study over an extended period in Australia. The Tribunal finds that such conduct is not consistent with a being a genuine student who intends to progress their study to improve their future career.

27. In his 359 response, the applicant states that his reason for not currently undertaking courses in his home country as follows; “Australia is an English speaking country and the standard is much higher as it is a multicultural country. Also, Australian education in India is highly in demand.” He made similar statements in his oral evidence. The Tribunal does not accept that the applicant has advanced reasonable reasons for not undertaking similar study in his home country. On any view, he already has the benefit of Australian qualifications in the form of his university bachelors and masters degrees. 

28. The applicant stated that he is not concerned by political or civil unrest in his home country. Further, he stated that he has no concerns about military service in his home country.

29. 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).

30. 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.

31. 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

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

    D. Triaca
    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.