Chander Mohan (Migration)

Chander Mohan (Migration) [2024] AATA 2216 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chander Mohan
REPRESENTATIVE:  Mr Muhammad Salman Khan (MARN: 1806993)
CASE NUMBER:  2400269
HOME AFFAIRS REFERENCE(S):          BCC2023/3701265
MEMBER:Jennifer Cripps Watts
DATE:5 June 2024
PLACE OF DECISION:  Sydney
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 5 June 2024 at 5:07pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is enrolled in a course of study – applicant has provided the Tribunal with a CoE and confirmation from his education provider – satisfied that the applicant is a genuine applicant for entry and stay as a student – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 22 December 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 June 2023. 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 (Cth) (the Regulations) because they were not satisfied that the applicant was a genuine temporary applicant for entry and stay as a student (GTE).
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, which is the same substantive issue on which the visa was refused, is whether the applicant meets what is commonly referred to as the GTE requirement to meet cl 500.212 of Schedule 2 to the Regulations.
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.
In March 2023, Ministerial Direction 69 was revoked and replaced by Ministerial Direction 108 (the Direction). The applicant’s visa was refused in December 2023 and now the new Direction applies. The applicant was provided with a copy of the Direction. However, the Tribunal is satisfied that there are no substantive changes in the Direction material to any issue in the applicant’s case. With reference to cl 500.212 requirements, and relevant to the circumstances of this case, matters the Tribunal must take into account include:
·the applicant’s circumstances in their home country, including the economic situation, political and civil unrest in his home country
·the extent of your ties to his home country
·whether the applicant has sound reasons for not studying in his home country if a similar course is available.
·any military service commitments that would present as a significant incentive for the applicant not to return to his home country.
·the applicant’s potential circumstances in Australia, including the extent of his ties with Australia that may present as a strong incentive to remain in Australia
·any evidence that the student visa program is being used by the applicant to circumvent the intention of the migration program, that is, whether the student visa is being used to maintain ongoing residence
·whether the applicant has entered into any relationship of concern
·the value of the course to your future (with reference to stated career goals and the course’s consistency with his current education level
·whether the course will assist the applicant to gain employment in his home country
·the relevance of the course to the applicant’s past or future employment in his home country or a third country
·remuneration and career prospects in the applicant’s home country or a third country to be gained from the course
·the applicant’s immigration history, including visa and travel history for Australia and other countries
·previous visa applications for Australia or other countries, and previous travels to Australia or other countries
·any other matter relevant to the applicant’s intention to stay in Australia temporarily must also be considered.
These factors above should be considered and weighed by the Tribunal to make an overall decision, but it is not an exhaustive list, and nor should it be followed rigidly.
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 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. The mattes to be considered have been detailed above.
On 14 February 2024, the Tribunal, constituted to a different member, wrote to the applicant and invited him to provide evidence of enrolment in a course of study and evidence in support of 500.212 GTE requirements. A link to an online form (the GTE form) was provided in the letter, with a request that the applicant complete the GTE form and return it to the Tribunal within a specified timeframe, by 28 February 2024, or any extension of time granted. The GTE form, referring essentially to the matters described above provides the applicant with an opportunity to provide answers relating to the GTE criteria prior to the hearing.
The applicant filled in the GTE form from the link provided by the Tribunal and signed it on 26 February 2024, and included the following information:
·The applicant first arrived in Australia holding a subclass 500 student visa on 29 December 2021 which ceased in August 2023. Prior to his first student visa ceasing, the applicant applied for a second student visa on 29 June 2023. He has not applied for any other visas in Australia, nor has he had any visas cancelled or refused, other than the current visa.
·The applicant was educated in India from 2007 to 2014 prior to his arrival in Australia – Matriculation Examination completed 2008, Year 12 equivalent completed 2010 and what appears to be the equivalent of a TAFE course, a Diploma of Welder (Gas and Electric), completed in July 2014. The applicant provided supporting documents confirming these matters.
·He has not indicated any previous relevant work experience prior to his arrival in Australia.
·The applicant chose to study in Australia because of what he considered to be the better quality of teaching, better employment prospects on completion of an Australian qualification and to experience another culture.
·Having qualified as a welder in India, the applicant has changed his career direction relating to his Australian studies and is now intending to pursue a career in the field of Information Technology (IT). The applicant originally came to Australia to study a Master of Information at James Cook University, but did not start the course, which is of some concern to the Tribunal, as he subsequently enrolled in a cheaper vocational education sector (VET) course. He did not have a strong or satisfactory start to his life as a student in Australia. However, he eventually enrolled in the same IT discipline as he intended when he was granted the first student visa, so consistent with his intended field of study, just at a less demanding level.
·The applicant has provided evidence from his education provider confirming that he has progressed well in his VET level IT studies since arriving in Australia. The applicant has provided the Tribunal with a current Confirmation of Enrolment (CoE). He is currently studying an Advanced Diploma of Information Technology at Gamma Education and Training, a course of 104 weeks’ duration which he commenced in July 2022. The applicant has also provided a statement of attainment from the education provider confirming that he has been studying consistent with the information in the CoE.
·In the GTE form, the applicant explained how he chose Gamma Education & Training and the Tribunal is satisfied that he made the choice after thoroughly considering his options.
·From February 2022 to December 2023, the applicant has worked part time hours in compliance with his visa conditions for Uber and Lite N Easy.
·The applicant has only been onshore for about two and a half years. He has not returned to his home country and, in his circumstances, the Tribunal is unconcerned that he has not visited home during this relatively short period of time.
·The applicant’s mother and two sisters reside in Australia. The applicant maintains contact with his mother daily and speaks to his sisters about twice a week. There is no evidence before the Tribunal that indicates the applicant has entered into any relationship of concern.
·The applicant has lived in Australia for about two and a half years and the Tribunal does not consider that amount of time to be likely to have resulted in the applicant developing greater ties to the community in Australia than to his close family members in India.
·The applicant has provided evidence of joint ownership of two residential plots in Amritsar India.
·He appears to have looked into what salary he might expect to earn working in IT in India; as a relatively new entrant to the IT workforce INR13,15,500, then progressing to management and a salary of INR43,15,896 within a top IT company.
·The applicant declares that there is no civil unrest or military service commitments in his home country that would serve as a disincentive for him to return there.
The applicant also provided a typewritten GTE stated dated 19 March 2024 consistent with the answers given in the GTE form that was completed by the applicant. The applicant has provided a written submission from his representative, Muhammad Salman Khan, which includes information generally consistent with the information the applicant himself has provided relating to the GTE criteria.
The Tribunal has considered information on both the Tribunal and Department files material to the issue on review, that is, whether the applicant is a genuine temporary applicant for entry and stay as a student. He says he would like to be in a position to make an application for a subclass 485 graduate visa for work experience in the IT field on completion of his studies. While this may be a pathway to staying in Australia permanently, it is a somewhat remote link that would indicate that the applicant is not intending to stay in Australia temporarily. The Tribunal accepts that the applicant genuinely intends to stay in Australia temporarily as a student, but that he also hopes to be able to continue after that to gain valuable work experience in his chosen field. It is only speculative at this stage that the applicant will be entitled to apply for, or be granted, a subclass 485 visa.
The Tribunal has given greater weight to some matters than to others. However, overall, on the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily.
Accordingly, the applicant meets cl 500.212(a).
Does the applicant intend to comply with visa conditions?
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), and if applicable 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
The applicant has provided the Tribunal with a CoE and confirmation from his education provider that he is enrolled in a course of study and that he attends classes. The applicant has provided evidence of his BUPA student insurance.
In his typewritten statement provided to the Tribunal, the applicant addresses the question of whether he intends to comply with his visa conditions and refers to his visa conditions in detail. The Tribunal is satisfied that the applicant has taken the time to ensure he is familiar with the subclass 500 student visa conditions and is satisfied that the applicant is intending to comply with them should the student visa be granted.
There is no information before the Tribunal that the applicant has been non-compliant with his visa conditions since arriving in Australia.
On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl 500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl 500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl 500.212(a) and (b)).
The Tribunal considers a relevant matter to be that overall, having considered the evidence very thoroughly, there appear to be no other matters that should or need to be considered for the purpose of sub-clause 500.212(c).
Conclusion
On the evidence and for the reasons given above, 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
Jennifer Cripps Watts
Senior Member

Attachment – Direction No.108
DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS
(Section 499)
I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).
Dated: 21 March 2024
Clare O’Neil
Minister for Home Affairs and Minister for Cyber Security
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 - Preliminary
Name of Direction
This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.
It may be cited as Direction No. 108.
Commencement
This Direction commences on 23 March 2024.
Revocation
Direction No. 69, given under section 499 of the Act, is revoked.
Interpretation
Act means the Migration Act 1958.
Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.
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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).
This Direction also applies to members of the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; who review the decisions of primary decision-makers in relation to a Student visa or Student Guardian visa application.
This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.
Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.
Preamble
The Australian Government operates a student visa program 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 program 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 – 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 or Student Guardian 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 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;
d) 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
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.
iii. b. Previous travels to Australia or other countries, including:
iv. 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;
v. whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;
vi. 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
vii. 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 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.

[2024] AATA 2216

5 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies