Chunchu (Migration)
[2020] AATA 5039
•5 November 2020
Chunchu (Migration) [2020] AATA 5039 (5 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs Sravani Chunchu
Mr Suresh YallanatiCASE NUMBER: 1912778
HOME AFFAIRS REFERENCE(S): BCC2019/523158
MEMBER:Robert O’Neill
DATE OF ORAL DECISION: 5 November 2020 at 11:34
DATE OF WRITTEN STATEMENT: 7 November 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cls.500.211 and 500.212 of Schedule 2 to the Regulations.
and the second applicant meets the criteria contained in cl. 500.311.
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Statement made on 07 November 2020 at 3:27pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study record and progression from previous courses – family and business ties to home country, and two returns there – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1, cl 1222, Schedule 2, cls 500.211(a), 500.212, 500.311
CASES
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Shoukat v Minister for Home Affairs [2020] FCA 194
Tandukar v Minister for Immigration [2019] FCCA 3510
INTRODUCTION AND OVERVIEW
Visa Refusal – Application for Review
INTRODUCTION AND OVERVIEW
Visa Refusal – Application for Review
The Applicant is a 31-year-old female citizen of India who seeks review of a decision made by a delegate of the Minister refusing to grant her a student visa.
The Applicant filed her visa application on 18 February 2019. The visa application was refused by the delegate on 7 May 2019.
Type of Visa
The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.
If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis.
Reasons for Initial Refusal
The student visa was refused in this case because the delegate found that the Applicant did not satisfy the primary criteria contained in cl 500.212 of Schedule 2 of the Regulations. The delegate was not satisfied that she was a genuine applicant for entry and stay as a student.
The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when she was notified that her visa application had been refused.[2] The Applicant also provided a copy of that decision record to the Tribunal when she lodged her review application.
[2] Notification was given in accordance with s 66 of the Migration Act 1958 (Cth) and reg 2.55 of the Migration Regulations 1994 (Cth) by emailing the notification and decision record to the Applicant’s last email address known to the Minister. By the operation of reg 2.55(8) of the Regulations, the Applicant is taken to have received the notification and decision record on the date that it was sent.
By lodging the review application, the Applicant contends that the delegate’s decision refusing the visa is neither the correct nor preferable outcome in this case.
Issues for Determination
In this case, the following issues arise for consideration and determination by the Tribunal:
(a)whether the Applicant is currently enrolled in a course of study, as required by cl 500.211 of Sch 2 of the Regulations (this is known as the enrolment criterion); and
(b)whether the Applicant is a genuine applicant for entry and stay as a student in Australia, as required by cl 500.212 of Sch 2 of the Regulations (this is known as the genuine applicant criterion’).
Hearing of Application
The applicant appeared before the Tribunal on 5 November 2019 to give evidence and present arguments. The hearing was conducted by telephone.
The applicant was assisted in relation to the review by her registered migration agent. A Hindi language interpreter was available at the hearing to assist the applicant.
Determination
For the following reasons, the Tribunal has determined that the delegate’s decision refusing to grant the Applicant a student visa ought to be remitted for reconsideration. The Tribunal’s reasons incorporate reference to the documentary evidence and other information found on the Tribunal and Department files that have been found to be material to the determination of the issues in the case.[3]
[3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material to the Tribunal’s ultimate determination. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [88]-[95]; Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
ENROLMENT CRITERION
Clause 500.211 requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[4]’ The enrolment must be current at the time the Tribunal makes its decision.[5]
[4] A ‘course of study’ is defined as ‘a full-time registered course of study’. See Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students (see reg 1.03 of the Regulations). The present case is not advanced on the basis that the main Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).
[5] Migration Regulations 1994 (Cth), Sch 2, 500.2.
Is the Applicant Currently Enrolled?
In this case, the Applicant advanced her case for a student visa on the basis that she wishes to complete a Advanced Diploma in Business (‘Advanced Diploma course’). In support of that claim, the Applicant produced a Confirmation of Enrolment document (‘CoE’).
Conclusion
The Tribunal is satisfied that the Applicant’s enrolment in the Advanced Diploma course represents a valid and current enrolment. Accordingly, the Tribunal finds that the Applicant meets the criteria contained in cl 500.211.
GENUINE APPLICANT CRITERION
The critical issue in this case is whether the Applicant satisfies the primary criteria contained in cl 500.212. That clause states that for a student visa application to be successful, the applicant must be ‘a genuine applicant for entry and stay as a student’ in Australia.[6]
[6] Migration Regulations 1994 (Cth), Sch 2, cl 500.212.
Meaning of ‘Genuine Applicant’
While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning.[7] The case authorities also suggest that, for an applicant to meet the genuine applicant criterion, the Tribunal must reach three states of satisfaction.[8] First, the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student.[9] Secondly, the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily.[10] Thirdly, a genuine applicant is one who intends to comply with any conditions to which the visa may be subject.[11] Amongst other relevant considerations, matters directly bearing upon the second and third states of satisfaction will significantly inform the Tribunal as to whether an applicant establishes the first state of satisfaction.[12]
[7] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017).
[8] Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [23]; Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].
[9] Migration Regulations 1994 (Cth), Sch 2, cl 500.212. See discussion in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [23]; Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].
[10] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(a).
[11] Migration Regulations 1994 (Cth), Sch 2, cl 500.212(b). For applicants who satisfy the primary criteria, conditions which are imposed on all student visas are specified in the Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). They include Conditions 8105 (paid work limitation), 8202 (maintain enrolment in full-time registered course of study, maintain or increase Australian Qualifications Framework level of enrolment in the event of a course change, attend classes, achieve satisfactory course progress), 8501 (maintain health insurance), 8516 (continuing obligation to satisfy the primary or secondary criteria of the visa, as the case may be), 8517 (make arrangements for the education of school-age dependants), 8532 (extra requirements for minors) and 8533 (notify education provider of changes of address). Further conditions may also be imposed in appropriate cases under cl 500.611(2). These Conditions are set out in Sch 8 of the Regulations
[12] See discussion in Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].
The Regulations direct the Tribunal to consider an applicant’s intentions as they are at the time the Tribunal makes its decision.[13] The Regulations specifically oblige the Tribunal to take into account an applicant’s stated intentions and other objective considerations. The Tribunal must have regard to the applicant’s circumstances, immigration history, record of compliance with the conditions of any previous visas issued, and any other relevant matter.
[13] Saini v MIBP [2016] FCA 858, [30]: ‘What is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.’
Direction No 69 issued by the Minister in 2016 sets out further factors in relation to the question of whether an applicant intends genuinely to remain in Australia temporarily. It requires the Tribunal to consider an applicant’s circumstances in their home country,[14] their potential circumstances in Australia,[15] the value of the proposed course of study to their future,[16] and their immigration history, and any other relevant matter.[17]
[14] Direction No 69, cls 6, 9, 10. This includes taking into account the following: the applicant’s reasons for not undertaking the proposed study in their own country or region (cl 9(a)); their personal ties to their home country and whether those ties would serve as a significant incentive for them to return home (cl 9(b)); their economic circumstances (cl 9(c), 10); potential military service commitments in their home country (cl 9(d)); and political and civil unrest in their home country (cl 9(e)).
[15] Direction No 69, cls 6, 11. This includes taking into account the following: the applicant’s ties with Australia, which may include family and community ties (cl 11(a)); evidence that the student visa program is being used to circumvent the intentions of the migration program (cl 11(b)); whether the student visa is being used to maintain ongoing residence (cl 11(c)); whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful student visa application outcome (cl 11(d)); the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider (cl 11(e)); the applicant’s previous study and qualifications (cl 11(e)); the realistic level of knowledge an applicant is expected to have, and the level of research they have undertaken, in relation to their proposed course of study and living arrangements (cl 11(e)).
[16] Direction No 69, cl 12. This includes taking into account the following: whether the student is seeking to undertake a course that is consistent with their current level of education (cl 12(a)); whether the course will assist the applicant to obtain employment or improve employment prospects in their home country (cl 12(a)); whether the applicant has made any reasonable changes to career or study pathways (cl 12(a)); the relevance of the course to the applicant’s past or proposed future employment either in their home country or a third country (cl 12(b)).
[17] Direction No 69, cls 4, 5, 13, 14. An applicant’s immigration history includes both their visa history and travel history (cl 13). Consideration should be given to the following: the applicant’s previous visa applications for Australia or other countries, including pending applications, and the circumstances of any visa applications being refused (cl 14(a)); the extent of an applicant’s compliance with visa conditions and whether they left the country before their visa expired (cl 14(b)(i)); whether a previously held visa was cancelled or considered for cancellation (cl 14(b)(ii)); the amount of time an applicant has spent in Australia (cl 14(b)(iii)); whether the student visa may be used primarily for maintaining ongoing residence in Australia (cl 14(b)(iii); whether an applicant has undertaken a series of short, inexpensive courses (cl 14(b)(iii)); whether an applicant has been in Australia for some time without successfully completing a qualification (cl 14(b)(iii)); the extent to which an applicant has complied with the migration laws of other countries (cl 14(b)(iv)).
Is the Applicant a Genuine Applicant in this Case?
The Tribunal has considered the application of these factors to the case at hand. On balancing all relevant considerations, the Tribunal is of the view that the Applicant is a genuine applicant for entry and stay as a student in Australia. The Tribunal has placed particular weight on the following:
(a)The Advanced Diploma course represents a logical and natural progression from the previous studies which the Applicant has completed and is consistent with what would ordinarily be expected of someone the Applicant’s age (31) and stage in life.
(b)She has strong family and business ties in India. She will be able to work on the same project in India as currently in Australia..
(c)The Applicant’s family are all in India.
(d)Since being in Australia, the Applicant has returned her home country twice, including for her wedding and to visit her mother when she was sick
(e)Taking into account the personal circumstances of the Applicant, the Applicant has a good student record insofar as enrolling in and successfully completing courses in Australia.
(f)The Applicant’s overall education history in Australia, and her most recent history in relation to the Diploma course which she recently graduated from, suggests that she is likely to complete the Graduate Diploma course successfully.
(g)The Tribunal is not aware of any particular circumstances in India which would give rise to an additional inducement for the applicant to apply for a student visa in Australia.
(h)The COVID-19 global pandemic is likely to motivate persons such as the Applicant to study pursuits to enhance their employability as the world recovers from the economic fallout.
Conclusion
In all the circumstances, the Tribunal is satisfied that the Applicant meets the criteria contained in cl 500.212 of Schedule 2 of the Regulations. It follows that the second applicant meets the criteria in cl 500.311.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) (Subclass 500) visas for reconsideration with a direction that the Applicant meets the criteria contained in cls 500.211 and 500.212 of Schedule 2 of the Migration Regulations 1994 (Cth) and the second applicant meets the criteria contained in cl. 500.311.
Robert O’Neill
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
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.
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).
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.
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.
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
Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.
For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.
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
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.
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
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
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
An applicant’s immigration history refers both to their visa and travel history.
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
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
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.
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