Brar (Migration)

Brar (Migration) [2020] AATA 2201 (24 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kuldeep Singh Brar
Mrs Kaur Virpal
Master Samar Brar
CASE NUMBER:  1724397
HOME AFFAIRS REFERENCE(S):          BCC2017/2926673
MEMBER:Steven Griffiths
DATE:24 January 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 24 January 2020 at 12:03pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – multiple student and bridging visas – study and work history – extended travel to home and third countries – enrolment for new course after gap in study and after being informed of tribunal hearing date – intention to return to home country after completing course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 September 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 15 August 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.
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).
On 24 October 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide all relevant information about the course(s) of study he is undertaking and his entry and stay in Australia as a student in writing. The invitation was sent to the applicants registered migration agent, Mr. Harjeet Singh, of Visa Explore Migration and Education Services, by email [email protected] and advised that, if the information was not provided in writing by 7 November 2019, 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.
On 29 October 2019 the Tribunal wrote to the applicant inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 6 January 2020 and providing the opportunity for any additional information that he may wish to rely upon to be provided by 30 December, 2019.
The Tribunal notes a response to the s.359(2) of the Act request for information was received on 7 November 2019.
On 7 November 2019 the Migration Agent sought, on behalf of the applicant, an extended date for the hearing to allow the Migration Agent, as he was out of Australia until 19 January 2020. The Tribunal agreed to this request.
On 12 November 2019 the Tribunal wrote to the applicant inviting him to a hearing, pursuant to s.360(1) of the Act, scheduled for 24January 2020.
On 20 January the Migration Agent sought an extension to the 22 January to provide information. The Tribunal notes that information was received on the 22^nd and 23^rd January 2020.
The primary applicant appeared before the Tribunal on 24 January 2020 to give evidence, respond to questions and present arguments.
The primary applicant noted the registered migration agent was ill and unable to attend the hearing.
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.
The Tribunal notes the delegate’s decision was based around compliance with cl.500.212 of the Regulations, being if the applicant was a genuine temporary applicant for entry and stay as a student.
Clause 500.212 states the following must be satisfied:-
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.
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.
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.
The Tribunal has read and had regard to information provided by the applicants to the Department (comprising 132 folios). The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with his application for review.
The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 7 November 2019 as a response to the s.359(2) of the Act request for information, which includes:-
(a)Arrived in Australia September 2009
(b)He, and his now family, has returned to India 3 times, totalling 150 days, with travel in November 2010, June 2012 and February 2014.
(c)He, and his family, travelled to Canada for 88 days from April 2019, with the trip also involving a 1 day stop-off in India.
(d)Was on Student visa from January 2009 to September 2011, and from October 2011 to December 2012, and from November 2012 to December 2014 and from December 2014 to August 2017, with a bridging visa in place for other times.
(e)Studied and completed a Diploma of Horticulture from August 2009 to August 2011,
(f)Studied and completed a Certificate lV and Diploma of Management from September 2011 to October 2012.
(g)Studied and completed a Diploma and Advance Diploma of Marketing from October 2012 to March 2015.
(h)Studied and completed a Diploma of Agribusiness Management from April 2015 to April 2016.
(i)Studied and completed a Advance Diploma of Agribusiness Management from August 2016 to August 2017.
(j)Studied and completed a Graduate Diploma of Agribusiness from August 2017 to August 2018.
(k)That he has worked in Australia from September to October 2012, from December 2012 to June 2013 and from June 2016 to June 2018.
(l)That he and his family have annual living costs of $ 27,760 per year.
(m)That he has an Australian Government, Department of Education Confirmation-of-Enrolment, Advance Diploma of Business for a course which commenced on 13 January 2020 and ends 12 January 2021.
The Tribunal has also read and had regard to a range of information, including bank deposits in India, previous commitments of financial support from the applicants father, certificates of completion for courses dated May 2011, September 2011, October 2011, November 2012, March 2014, April 2015, July 2016, July 2017 and records of agriculture product sales by the father of the applicant in India, provided on 22 January 2020.
The Tribunal has read and had regard to certificates of completion for courses dated September 2018, October 2018 and details of land owned by the applicant and his family in India, provided on 23 January 2020.
The Tribunal has also read and had regard to a statement by the applicants registered migration agent, undated but received on 23 January 2020.
The applicant is a 38 year old citizen of India, who arrived in Australia on 23/4/09 on a Higher Education 572 visa until 1/9/11. On 29/8/11 he was placed on a bridging visa, with a further 572 visa granted 11/10/11 and to cease 28/11/12. On 23/11/12 he was placed on a bridging visa, with a further 572 visa granted 28/11/12 and to cease 12/12/14. On 11/11/14 he was placed on a bridging visa, with a further 572 visa granted 12/12/14 and to cease 12/12/17. Since 12/12/17 he has been on a series of bridging visas.
The Tribunal notes the Decision Record of the delegate refers to the intention, at the time of the visa application, of the applicant staying in Australia to complete a Graduate Diploma of Agribusiness course, with the applicant indicating he would return to India at the completion.
The Tribunal notes, from the documented evidence provided by the applicant, that the applicant completed a Graduate Diploma of Agribusiness course in August 2018.
The Tribunal notes the applicant provided no documented evidence or oral evidence of seeking to enrol in any courses from August 2018 until becoming enrolled in a Advance Diploma of Business from 13 January 2020.
The Tribunal notes the applicant undertook no study for a 17 month period following the completion of a course in August 2018 period and places weight on this in considering the genuine study intent of the applicant.
The Tribunal notes the applicant and his family travelled to Canada to visit family from April 2019, with the oral evidence of the applicant being that originally they intended to travel for 1 month, but while away from Australia decided to instead stay in Canada for 88 days and 1 day in India period and places weight on this in considering the genuine study intent of the applicant.
The Tribunal notes, from the documented and oral evidence of the applicant, that prior to August 2018 the applicant had continuously been undertaking courses of study, and notes with the completion of course indicated at the time of the visa application that he wished to stay in Australia for resolved, instead of returning to India, the applicant chose to remain in Australia, to not study, to not work, to undertake a 3 month overseas trip and then to enrol in a course of study only after being advised of a hearing date for the Tribunal to consider his review application period and places weight on this in considering the genuine study intent of the applicant.
The Tribunal notes the documented and oral evidence of the applicant on bank deposits, in India, of he, his wife, his mother and other family members, of records of land ownership in India by he and his family, and that in Australia his wife is working and earning sufficient funds to finance the living costs of the family while he cares for his 4 year old son and places weight on this in considering the genuine study intent of the applicant.
The Tribunal determines that the documented evidence from the applicant of his father supporting him financially while studying in Australia is not accepted, as it refers specifically to a course of study completed in August 2018.
The Tribunal notes the evidence of the applicant that undertaking the current course of study he is enrolled in is not practical for him in India and will not result in the same level of information required.
The Tribunal notes the oral evidence of the applicant that in Australia he has nothing, while in India he has everything, as a statement of his intention to return to India at the completion of his current course in January 2021.
In accordance with the ministerial direction, the Tribunal asked the applicant of any circumstances in India that may induce him to apply for a student visa as a means of remaining in Australia indefinitely. The applicant provided oral evidence to the Tribunal that there are not any reasons why he cannot return to India and that he does not have any issues concerning military service, political or civil unrest.
There is no particular evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Steven Griffiths
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.

[2020] AATA 2201

24 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Intention

Natural Justice