Brar (Migration)

Brar (Migration) [2019] AATA 1315 (15 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harmanpreet Singh Brar
CASE NUMBER:  1712086
HOME AFFAIRS REFERENCE(S):           BCC2017/564452
MEMBER:Robert Cumming
DATE:15 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 15 April 2019 at 4:12pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – satisfactory academic progress – significant economic and personal ties to home country – limited ties in Australia – immigration history – no issues of concern – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 30 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 February 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant’s family ties did not constitute a significant reason for the applicant to return home on the conclusion of his studies. Moreover, the delegate was concerned that the applicant’s intention to live in Australia was motivated by factors other than study.
The applicant appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant had been assisted in relation to the review by his registered migration agent, but the agent did not attend the hearing before the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)     the applicant’s circumstances; and
(ii)    the applicant’s immigration history; and
(iii)     if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)     any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)     the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)    the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction (a copy of which is annexed to this decision) 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 applicant gave evidence that he comes from a middle class family in India which consists of his father and mother and one brother. The family own land on which they engage in agricultural pursuits, chiefly the growing of rice.
The applicant’s family have provided him with financial support to be able to live and study in Australia. They wish him to return on conclusion of his studies.
The reason the applicant is undertaking his studies in Australia, he advised the Tribunal, is that the quality of his Australian qualifications will set the conditions for him to secure better and more remunerative employment than he might otherwise obtain with local qualifications.
In answer to the Tribunal’s questions, the applicant indicated there were no economic circumstances, no requirements to render military service or political and civil unrest at home which would present a significant incentive for him not to return home.
The Tribunal did not identify any relevant circumstances in relation to the applicant’s circumstances in his home country India relative to the circumstances of others in that country.
The applicant gave evidence to the Tribunal that he had limited ties in Australia. He did not have family in Australia but had a few friends who he had met during his studies.
Since the applicant has been in Australia he has undertaken or is undertaking the following courses of study:
a.Certificate IV in Business – undertaken from 11 May 2015 to 11 October 2015;
b.Diploma of Business – undertaken from 30 November 2015 to 5 June 2016;
c.Advanced Diploma of Business – undertaken from 25 July 2016 to 22 January 2017; and
d.Bachelor of Professional Accounting – which the applicant commenced on 13 March 2017 and is due to complete on 31 July 2019.
While at the conclusion of his studies the applicant will have been in Australia for some four years and two months, the Tribunal considers the applicant has pursued a coherent course of study and has progressed at a satisfactory rate of effort.
It is noted that the applicant ought to have concluded his current Bachelor’s course on 31 December 2018. It appears he failed to obtain credit for two subjects which he is undertaking currently with completion due on 31 July 2019. Given his course progress otherwise, the Tribunal does not place any significant negative weight on this comparatively small delay in completion of his studies.
The applicant has worked to provide extra support for himself within the limitations imposed by his bridging visa by working in the taxi industry.
The applicant gave evidence that he will return to India on conclusion of his studies. While at the time of his application for a student visa the applicant stated it was his intention to open a chain of restaurants in India on his return, this intention has changed and he advised the Tribunal that it is his intention to seek employment in one of the large accounting firms in one of India’s bigger cities.
When the applicant arrived in Australia he only had his secondary school studies behind him. He advised the Tribunal that his business and professional accounting qualifications he will obtain from Australia are well regarded in India and will set the conditions for him to secure more remunerative employment on his return home than he might otherwise have obtained studying locally at home in India. No objective independent evidence of this was produced, however.
The applicant arrived in Australia on 10 May 2015. He has remained in Australia since then but for one return visit home between 27 November 2017 and 11 January 2018 when the applicant advised the Tribunal he returned home to celebrate his brother’s wedding.
He had not previously travelled to Australia.
As noted at paragraph 18, the applicant will have been in Australia for some four years and two months at the conclusion of his current course of study.
The applicant did not suggest there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrant status in Australia.
The Tribunal has not identified any other relevant matters that bear upon the conduct of the review.
Having considered the evidence, the Tribunal finds that:
a.it can accept the reasons given by the applicant for undertaking studies in Australia rather than at home in India;
b.the applicant has ties in India (his parents and brother) who have been supporting him but wish his return after completing his studies in a timely manner which serves as a significant incentive for him to return home;
c.because the applicant’s family are financially supporting him for the duration of the applicant’s studies in Australia, there is a significant incentive for him to return to India at the conclusion of his studies in July 2019;
d.there are no requirements for military service commitments affecting the applicant which would present as a significant incentive for him not to return to his home country;
e.there are no circumstances of political and civil unrest in the applicant’s home country;
f.there are no concerns as to the applicant’s circumstances in his home country relative to the circumstances of others in that country;
g.the applicant has limited ties in Australia, namely his studies and part-time work which do not present a strong incentive for him to remain in Australia;
h.there is no evidence to suggest the student visa program is being used by the applicant to circumvent the intentions of the migration program;
i.there is no compelling evidence to find that the Student visa is being used to maintain ongoing residence in Australia;
j.because the applicant does not have a secondary partner applicant there is no evidence to suggest the applicant has entered into a relationship of concern for a successful Student visa outcome;
k.the applicant has demonstrated adequate knowledge of living in Australia and his intended course of study and the associated education provider;
l.the applicant has pursued a coherent course of study and has progressed at a satisfactory rate of effort and this will assist the applicant to obtain employment in his home country;
m.the study the applicant is now undertaking is relevant to his proposed future employment;
n.the applicant arrived in Australia with no tertiary qualifications and will return to India with such qualifications which the Tribunal can accept will permit the applicant to be able to secure more remunerative employment in India with his qualifications gained in Australia instead of relying only on his high school education in India, notwithstanding there is no direct comparable independent evidence to support this;
o.because there is no evidence of previous travels to Australia or other countries by the applicant, there are no issues of concern with respect to his:
i.compliance with visa conditions;
ii.visa cancellation;
iii.time previously spent in Australia; or
iv.travel to countries other than Australia.
p.as this application is not linked to a secondary applicant who is a minor, there is no requirement to consider any intentions the applicant may have for a minor; and
q.there are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.
As a result of that assessment of the evidence and making the findings it has, the Tribunal is satisfied that on balance the applicant is a genuine temporary entrant to Australia.
The Tribunal has formed that view for reasons including that:
a.the applicant’s ties in India to his family who has been predominantly supporting his studies in Australia and seek his return on completion of those studies present as a significant incentive for him to return to India;
b.the applicant’s ties in Australia do not present a significant incentive for him to remain in Australia;
c.the applicant has undertaken appropriate studies towards his stated employment intentions in India on his return and has progressed in those studies at an acceptable rate of effort; and
d.his stated intention is to return to India on completion of his studies on 31 July 2019.
Having had regard to all matters, including the Direction No.69 requirements to which regard is required, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Conclusion on cl.500.212
Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations.
Robert Cumming
Member

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:
c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;
d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;
e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;
f.whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and
g.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.
Value of the course to the applicant’s future
12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:
a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and
b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and
c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.
The applicant's immigration history
13.An applicant’s immigration history refers both to their visa and travel history.
14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and
ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.
b.Previous travels to Australia or other countries, including: i. if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;
i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
ii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and
iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country
If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant
15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.
Any other relevant matters
16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.

[2019] AATA 1315

15 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies