Brar (Migration)

[2020] AATA 5924

Brar (Migration) [2020] AATA 5924 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pritam Singh Brar
Ms Ramandeep Kaur
Miss Gurmanjot Kaur Brar
Master Parwanjot Singh Brar

CASE NUMBER:  1925272

HOME AFFAIRS REFERENCE(S):          BCC2019/3748775

MEMBER:Wendy Banfield

DATE:23 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 December 2020 at 10:38am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – lengthy stay in Australia – ongoing employment in Australia – family property in India – value of course to future career – member of the family unit – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212; r 1.12

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 27 August 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 July 2019. 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) because it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The primary applicant (the applicant) is a citizen of India and is currently 35 years old. The secondary applicants are his spouse and two of his children. The applicant arrived in Australia on 15 October 2008. He has three minor children born in Australia, the oldest of whom has been granted Australian citizenship. The applicant was previously a dependent on the temporary visas held by his spouse while she was studying and working in Australia. The applicant has now completed an English course and is currently enrolled to study certificate and diploma courses in auto-mechanics.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. On 12 May 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information about his enrolment in a course of study and the genuine temporary entrant criteria, in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 26 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The applicant responded to the invitation and submitted evidence in support of the application for review.

7. In his response to the s.359(2) invitation dated 26 May 2020, the review applicant indicated that he consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

8. The applicant submitted the following evidence to the Tribunal:

   ·     Request for Student Visa Information form dated 26 May 2020;

   ·     Applicant’s statement of purpose (undated);

   ·     Indian income tax assessment and returns;

   ·     Commonwealth Bank of Australia statements in the name of the applicant and his spouse;

   ·     Representative’s submission dated 1 June 2020;

   ·     Evidence of Australian Citizenship dated 26 May 2020 for Sukhmanjot Kaur Brar, the daughter of the primary applicant;

   ·     Confirmation of Enrolment certificates in the name of the applicant for English and automotive studies;

   ·     Assessment of assets – India;

   ·     Applicant’s driver’s licence;

   ·     Letter from the applicant’s education provider regarding course postponement;

   ·     Bank of India statements;

   ·     Completed qualifications certificate - General English;

   ·     Deposit confirmation - Bank of India;

   ·     Payment of education fees;

   ·     Record of land in India;

   ·     Planned modules for enrolled course;

   ·     Sale of land – India;

   ·     Overseas Affidavit of support.

9. The Tribunal also took into account the evidence submitted to the Department in support of the application: national identify cards, passports and birth certificates; marriage certificate; evidence of the applicant’s enrolment to study; evidence of the applicants’ children attending school; genuine temporary entrant statements by the parties; statements of purpose; overseas student health cover certificates; consent forms to grant an Australian visa to a child under the aged of 18 years; statutory declaration of the applicant regarding his name; evidence of the applicant’s education in India; medical evidence regarding the birth of the applicant’s son.

10. On 10 July 2020 the Tribunal received a withdrawal form relating to the applicant’s minor child Sukhmanjot Kaur Brar. For this reason, the Tribunal no longer has jurisdiction in relation to Sukhmanjot Kaur Brar.

    Applicant’s statement of purpose

11. The applicant made the following submissions: He came to Australia in 2008 to accompany his wife who was studying. He had only completed high school in India and did not pursue further education but had always been interested in vehicle technology and worked on farm machinery in the past. After his wife completed her studies the applicant wanted to further his education so they can both have successful careers in India. The applicant explained the benefits of studying in Australia and why he chose to study in the automotive field. The content of the Certificate III, IV and Diploma courses the applicant has enrolled in are set out. The applicant declares he will return to India after completing the courses and he and his family have no plans to remain in Australia permanently. He believes there are employment opportunities and that he will have an advantage over locally qualified candidates. The applicant believes it would be impossible for him to restart his education in India due to there being a gap of many years.

    Representative’s submission

12. The representative makes the following submissions: The applicant completed Year 12 in India and arrived in Australia in 2008. He developed an interest in the automotive industry after working in a car wash in 2009. The applicant wants to be a motor mechanic and enrolled in certificate and diploma courses for that purpose. The applicant and his wife came to Australia so that she could study but the applicant “never got a chance to improve his skills in any field”.  The applicant’s parents and extended family live in India and the applicant will need to take care of them. He had previously worked on farm machinery which led to his interest in vehicle technology. The applicant wants an international qualification with value in India; he will be able to get a stable job; his father supports him, and the applicant will inherit his estate; the applicant has limited support in Australia but has social and economic ties to India.

13. It was claimed the applicant has strong family ties to India, he has always complied with visa conditions, he is currently enrolled to study and has paid the fees, he plans to go back to India to work or open a business and would like to obtain experience in the automotive industry while he studies. It was submitted the applicant is eligible for the grant of a Student visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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 temporary entrant for study, as required for the grant of a student visa.

16. 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?

17. 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.

18. 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.

19. The Tribunal considered the applicant’s circumstances in his home country. The applicant’s parents and extended family members reside in India and he declared an intention to return after completing studies in Australia. The applicant stated his reasons for not undertaking study in his home country and preference for Australia which the Tribunal considers may have been reasonable if the applicant had pursued further education earlier. The applicant has had regular and ongoing employment in Australia and while he has ongoing personal ties to his home country through his extended family, the Tribunal considers his circumstances in Australia are an incentive to seek to remain. The applicant provided some evidence of economic ties to India in the form of family property and bank statements, however, the applicant’s immediate family are accompanying him in Australia and they have been temporary residents for many years (more than 12 in the case of the applicant and his wife). Given the economic disparity between Australia and India, the applicant’s employment is a reason for him to prolong his temporary residency. The Tribunal considers the applicant has established ongoing ties to Australia and is not satisfied he has an incentive to return to his home country.

20. In Australia the applicant has been employed in a car wash and as a taxi driver. He does not appear to have any relevant mechanical experience to date, other than his claim of having worked on farm vehicles in India which is not supported by independent evidence. Although the applicant advised he wishes to obtain such work experience, there is no evidence he has done so to date. The representative’s submission states the applicant never previously had a chance to improve his skills but no reason for this is given. The applicant has had an opportunity to work while in Australia but after 12 years he has only recently sought to pursue further qualifications. It was open to him to take steps to improve his qualifications and experience in a field of his choice while his wife was studying. No reason was provided as to why the applicant did not follow his interest in automotive technology if he has had an interest in the area since being involved in farm machinery in India. If the applicant had attended a hearing the Tribunal would have asked him about this issue but he opted not to.

21. The applicant’s spouse and three children live in Australia with him. The children were all born in Australia and the oldest is of school age. The Tribunal considers the applicant and his family would have established community ties in Australia that would present as a strong incentive to remain. Again, the Tribunal did not have an opportunity to question the applicant about this issue. The representative submitted the applicant has “limited support” in Australia but the applicant and his spouse have supported themselves onshore over many years, away from extended family members. Given their circumstances in Australia, the Tribunal finds the applicants would have no difficulty continuing to do so and the distance from relatives does not appear to be an incentive to depart Australia.

22. Regarding the value of the course to the applicant’s future, the Tribunal has considered the courses the applicant is currently enrolled in. Since the applicant has not pursued any study or obtained formal qualifications beyond a high school education, the Tribunal is satisfied the completion of vocational courses in automotive technology may be of some benefit on his return to India. It could improve his ability to work on vehicles as he claims to have done in the past. However, the applicant’s evidence regarding his plans on his return to India lacks detail and the Tribunal is not satisfied he has demonstrated how he will be able to gain employment, the remuneration he could expect or how he could start his own business. The applicant claimed he would like to obtain work experience in Australia while he is studying but did not indicate how he plans to achieve that, or what steps he has taken. Trades such as motor mechanic, being practical in nature usually require work experience and the Tribunal is not satisfied the applicant has fully explored how he will apply any qualifications he obtains in future, particularly if he is unable to gain hands on experience. The Tribunal places limited weight in favour of the applicant on the value of the course to his future.

23. The applicant’s immigration history refers to both his visa and travel history. The applicant arrived in Australia on 15 October 2008 and is currently enrolled to study until 29 January 2023. If the applicant were to remain in Australia until the end of his course date, this would extend his temporary residency in Australia to 14 years and three months. The Tribunal accepts there is no evidence to indicate the applicant has not complied with the conditions of his visas, however, the amount of time the applicant has spent in Australia so far, and his plans to remain until 2023 indicates the Student visa may be being used primarily to maintain ongoing residency in Australia. In addition, since his arrival in Australia 12 years ago, the applicant has only returned to India on four occasions, in 2012, 2014, 2015 and 2019. Based on the amount of time the applicant has spent in Australia and the infrequency of his return trips to India, the Tribunal considers the applicant ties to his home country would have diminished. For these reasons, the applicant’s immigration history weighs against him in this case.

24. The Tribunal weighed the evidence in this case individually and cumulatively and is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

25. 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.

26. 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.

    Member of Family Unit – Secondary visa applicant

27. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

28. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicants are unable to meet the criteria because they are not members of the family unit of a person who satisfies the primary criteria in cl.500.212.

    DECISION

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

    Wendy Banfield
    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.