Dugg (Migration)

Dugg (Migration) [2020] AATA 2893 (9 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Navjot Singh Dugg
CASE NUMBER:  1903430
DIBP REFERENCE(S):  BCC2018/5441222
MEMBER:Robert Cumming
DATE AND TIME OF
ORAL DECISION AND REASONS:         9 April 2020 at 3:27 pm (QLD time)
DATE OF WRITTEN RECORD:                22 April 2020
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.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – applicant’s family ties to his home country – delayed completion of degree – subsequent Vocational courses – employment offer and plans for automotive business – studies will assist the applicant to obtain employment – incentive to return to India – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
APPLICATION FOR REVIEW

At the hearing of this application on 9 April 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 February 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 December 2018. At the time of the 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 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 the applicant intended genuinely to stay in Australia temporarily.
The applicant appeared before the Tribunal by telephone on 9 April 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective for providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At hearing, the applicant was questioned as to whether he agreed to the application being dealt with by way of a telephone hearing and the applicant said that he did. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was assisted in relation to the review by his registered migration agent.
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 intends genuinely to stay in Australia temporarily.
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, a copy of which was given by the Tribunal to the applicant during the course of the conduct of the proceedings, 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 had regard to all the information supplied to the Department of Home Affairs with the visa application, which is on the Departmental file provided to the Tribunal, and all the information supplied to the Tribunal by the applicant. In particular, the Tribunal notes the completed Request for Student Visa Information form (Information form) together with other supporting documentation received by the Tribunal on 23 December 2019, as well as the submissions and supporting documentation received just prior to the hearing on 9 April 2020, as well as the oral evidence and submissions given by the applicant at the hearing.
The Tribunal notes that it has on its file certain information which was not provided by the applicant. These were print-outs from the Provider Registration and International Student Management System (PRISMS) and also the Departmental movement records. The Tribunal notes that the applicant has, in the Information form and in his submissions, given information to the same effect as the information contained in those two print-outs.
Nevertheless, out of fairness and in accordance with s.359AA of the Act, the Tribunal gave copies of the print-outs to the applicant, which was in the form of emailing them to the applicant prior to the hearing, and the applicant had access to those print-outs at the hearing, and he was given time to consider the material and to comment upon it. Having had time to consider the material, the applicant indicated to the Tribunal, when asked, that he did not require any additional time to consider the information and did not seek an adjournment to make submissions in relation to the accuracy of the information in the print-outs. The applicant did not challenge the accuracy of the information in the print-outs.
Based on all of that information, the applicant’s circumstances may be summarised as follows:
(a)The applicant is a 29-year-old citizen of India who first arrived in Australia on 6 February 2015.
(b)The applicant has links in his home country in the form of his elderly, retired army officer father, his mother, and a sister who is now married and lives away with her husband’s family. The applicant says he keeps in contact regularly with his family, at least two to three times a week.
(c)The applicant has provided evidence that his family are a well-to-do property-owning family, and were the situation that he had to return quickly to India, he would be able to be supported by them, both accommodation-wise and financially. Indeed, the costs of living and studying in Australia have been borne to the greatest extent by his family, the applicant only having worked in the early days in fairly low-skilled jobs, and for the latter part of his time in Australia he has not had work rights and so has been entirely reliant on his parents for financial support.
(d)In submissions and the Information form, the applicant indicated that he had no concerns in respect to requirements for military service commitments or for political and civil unrest in the area of India where his family lives.
(e)In Australia, the applicant has a small circle of friends drawn mainly from study colleagues. He socialises with the ones who live locally on a weekly basis and in less frequency, perhaps two or three times a month, with other friends including friends away from Bundaberg in Brisbane.
(f)As noted, the applicant has done some work in Australia. However, this was only in the period from March 2015 to February 2017, essentially as a delivery driver and customer service provider, and there was a period during this time where he worked as a housekeeper in a city hotel in 2016 for approximately three months. As noted, since that time he has not worked in Australia.
(g)Prior to arrival in Australia, the applicant had completed studies at home in India at the Panjab University in Chandigarh where he completed his Bachelor of Arts in April 2014.
(h)Thereafter, the applicant attempted a Bachelor of Hospitality Management at the European University in Cyprus. However, ill health prevented him completing that course and he returned to India and then subsequently came to Australia. He had not worked in India, and his first experience of employment was in Australia as the delivery driver as mentioned.
(i)The applicant initially studied English on his arrival in Australia, completing English language courses at the University of Tasmania and subsequently Bridging English at Sarina Russo Institute.
(j)The applicant initially attempted to undertake MBA studies at the University of Tasmania. However, the University was not able to complete the offering of that course, and in fact, the applicant did not start that course.
(k)In March 2016, the applicant commenced his MBA studies at James Cook University, which ordinarily would have taken two years full time. The applicant suffered a number of illnesses during that time and has provided evidence in relation to those illnesses in the material on the Tribunal file. As a result, he did not complete his MBA within the normal time, extending that by approximately 18 months.
(l)Nevertheless, he did complete the studies and was granted the degree, and his testamur for that degree is in evidence. At about the time he completed his MBA course at James Cook University, the applicant enrolled in a TAFE Queensland course, a Certificate III in Light Vehicle Mechanical Technology, which he took during the 2019 year, commencing in January and finishing the course earlier this year, completing all 36 competencies. He is currently about to start his Certificate IV in Automotive Mechanical Overhauling, which will see him complete 10 competencies between April 2020 and December 2020.
(m)The work will be delivered online and the applicant indicated he was expecting that, notwithstanding the advent of the COVID-19 pandemic, his studies would be able to progress and be dealt with accordingly so that he could complete his studies as scheduled.
(n)The applicant indicated that it was then his intention to return to India to work in the motor industry. The applicant provided evidence of a job offer that has been provided to him by Vishawkarma Agro Industries, which is dated 3 January 2020, and offers him employment in the business development or workshop department from January 2021, the offer being conditional in the sense that the applicant had to complete his automotive studies in Australia.
(o)The applicant indicated that the job related to a large organisation within India that has many offices, and that particular job is to be offered in Mohali where it is expected the manager will be in transition to retirement at that time and will do a handover/takeover with the applicant, and then the applicant will be able to be in the position. Having gained experience in that regard, the applicant’s ultimate desire is to open his own business, and he has provided a business plan that he himself has prepared for a business named NS Dugg Enterprises which will trade under the name of Navmatics Autozone.
(p)The business will operate both as to car service, repair and maintenance, and also selling of used cars which will also involve some mechanical works to improve the cars. He has given indicative cash flow and other details of his business strategy. Obviously, a lot depends on circumstances, but the applicant is ready, willing and able to do the best he can with the business. He advised that he will benefit from his studies in Australia.
(q)Based on the information regarding travel as confirmed by the applicant as noted in the movement records and as noted in his completed Information form and submissions, the applicant initially arrived in Australia on 6 February 2015 and has not departed Australia since.
(r)The applicant says this is because he was involved in study, and while it was delayed through illness, he received the continuous support of his parents who had to spend extra money to ensure he got through, and they were supportive of him staying in Australia to get the qualifications prior to him returning home, and he explains that is the reason for not travelling back during this time.
(s)The applicant has given evidence of his travels to countries other than his home country in Australia, in that he has travelled to Cyprus. However, the applicant gave evidence that he had no difficulties with visas or compliance with the migration laws of that country.
(t)Apart from dealing with issues of concern in explaining his circumstances overall, which will be discussed later, 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.
During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues.
The first issue of concern is the genuineness of the job offer from Vishawkarma Agro Industries. The applicant indicated that he had looked for job opportunities and applied for at least three, and did succeed in having a telephone interview with this particular company, which is a large company operating throughout India.
He was questioned as to how a business could possibly know what business circumstances would be like into the future, and he said that this was a large business with offices around India, and because they were impressed with him, he was sure he could fit in with employment opportunities, if not in Mohali, elsewhere, but it just so happened that it was expected at around about the time he was due to commence work that he would be taking the position of a manager who was transitioning to retirement, and this would prove useful for the business, given they were happy that he had Australian qualifications.
The applicant further said, when questioned, that he has spoken to the business as a result of the onset of the COVID-19 pandemic, and while India is under lockdown conditions at present and businesses aren’t operating, it is anticipated, following his discussions with the business, that they will be in a position to resume trading at some future date, and accordingly, his employment would continue to be assured by them subject to him passing his studies in Australia.
The next issue of concern which has also been touched on is as to why the applicant has not made any return trips to India. He explained this by reason of the fact that he was concentrating on his studies and was supported by his parents to see that out to the end, notwithstanding the 18-month delay to the studies and the increased costs. He is their only son and they are always supportive of him and would allow that situation to happen, and he can keep in contact with them by phone and other means, so he still has that link with them.
The third issue of concern put to the applicant related to the fact that he had Bachelor-level studies in India, Masters-level studies in India, and then had reverted to Certificate III and Certificate IV-level studies in the Vocational Education and Training sector.
The applicant acknowledged that this was the case. However, he suggested that it had been his long-term goal to become involved in the automotive industry and he needed the managerial qualifications that he would gain from his MBA studies to set the conditions for him to run a successful business, which was his ultimate aim. However, it was also necessary to have subject matter expert skills, and for that reason he wished his qualifications to be gained by studying the Certificate III and Certificate IV in that vehicle mechanic field.
The fourth issue of concern was why the applicant was not undertaking the studies in India when in his submissions he said there was an institute he could study at. When pressed on this at hearing, the applicant said that he certainly could study there, but the quality of education was vastly inferior to what he indeed was currently gaining in Australia. The Australian education was more up-to-date technology-wise, he had better hands-on experience than the theoretical learning he would get in India, workshop conditions were better, and in any event, he would be living away from home to undertake those studies, and if it was the case that he had to live away from home, then he may well live away from home in Australia, notwithstanding it was away from India, but he would benefit from the quality of the training he would get.
As noted above, the key issue the Tribunal has to decide in this case is whether the applicant intends genuinely to stay in Australia temporarily. On that issue, the considerations set out in cl.500.212(a) of Schedule 2 to the Regulations govern the matters the Tribunal needs to consider.
In assessing whether an applicant meets that genuine temporary entrant criterion, the Tribunal must have regard to Direction No.69. As also noted above, that Direction is not to be used as a checklist, but rather is intended to guide decision-makers in considering the applicant’s circumstances as a whole in reaching a finding as to whether the applicant satisfies that genuine temporary entrant criterion.
In adopting that process in this case, and after having considered all the factors in the Direction, the Tribunal finds that some of those factors are not of sufficient importance or materiality to its decision so as to tip the balance away from the view the Tribunal has taken of the applicant’s circumstances. This is not to suggest that those factors have been overlooked, but rather that the Tribunal, in considering its decisions, has found these factors of lesser weight in balancing those factors in coming to its decision overall on the merits of the review application.

Having had regard to the applicant’s evidence and submissions and his responses to the possible concerns raised by the Tribunal as mentioned above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:
(a)While there is some lingering doubt in the mind of the Tribunal, it is prepared to give the benefit of the doubt to the applicant and accept the reasons he has provided as to the quality of education and the advantages that will give to him in running a successful business, to justify the finding that it can be accepted the studies the applicant is currently undertaking are being undertaken in Australia rather than in his home country.
(b)The applicant has links in his home country in the form of his father, mother and sister, but at this stage does not have any assets himself, although will have use of the applicant’s family’s property holdings to start his business.
(c)While the applicant has been in Australia for five years, in the circumstances he has studied during that time, albeit unsuccessfully for part of the time, although in the scheme of things a delay of 18 months due to ill health is a situation that the Tribunal will not hold against the applicant, and while he does have the wherewithal to stay here in Australia and can satisfactorily keep in contact with his parents in India, nevertheless, given the obligation he expressed in evidence that he feels to repay, as it were, his parents for all the funding they have given him, and the factor of the advantages he will get by returning to India, does lead the Tribunal, on balance, to the conclusion that there is a significant incentive for the applicant to return to his home country.
(d)As to economic circumstances in the applicant’s home country, the Tribunal notes the financial resources the applicant’s family has and how that would provide him with accommodation and a working area for his proposed business, and accordingly, the Tribunal does not find the economic circumstances of the applicant present a significant incentive for him not to return to his home country.
(e)There are no requirements for military service commitments affecting the applicant which present as a significant incentive for him not to return to his home country.
(f)There are no circumstances of political and civil unrest in the area the applicant’s family are located in his home country which would present as a significant incentive for him not to return to his home country.
(g)In considering the circumstances in his home country relevant to the circumstances of others in that country, the Tribunal finds the applicant comes from a well-to-do property-owning family, but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.
(h)The applicant has ties in Australia, namely, his studies and a small circle of friends with which he socialises. He does say he is living frugally because he is relying on his parents’ resources to cover the costs of living and studying in Australia, and has expressed an indication that he will return home. It would be to the discredit of the applicant if, having advised the Tribunal that he does intend to return at the end of his studies, he does, in contrast to what he told the Tribunal in evidence, that he would then seek to remain in Australia and undertake further studies or otherwise seek to extend his stay here. However, in the absence of that situation, the Tribunal is prepared to conclude in the particular circumstances of this applicant that the student visa program is not being used to circumvent the intentions of the migration program.
(i)For those reasons also, the Tribunal finds that the student visa is not being used to maintain ongoing residence in Australia.
(j)Because there is no secondary applicant, it is unnecessary for the Tribunal to consider whether the applicant has contrived to enter a relationship for a successful student visa outcome.
(k)The Tribunal is satisfied the applicant has displayed satisfactory knowledge of living in Australia, his associated education provider and the studies he is currently undertaking.
(l)While the applicant is undertaking studies that are different from those that he gained in his home country before coming to Australia, the Tribunal does note the plan set out by the applicant for his return to India. While again the Tribunal harbours some doubts about the genuineness of the job offer, given the inherent unlikelihood of businesses being able to predict into the future what is going to happen, amply demonstrated by the advent of the COVID-19 pandemic that the world is currently experiencing, the applicant did give a reason why it might be expected that the offer of the job did relate to a situation that might suit him in the sense that the manager in Mohali was due to retire and the position would be available at that time. Then this leaves the Tribunal with the finding that the studies will assist the applicant to obtain employment or improve employment prospects in his home country.
(m)For similar reasons, the Tribunal is prepared to find, given the applicant’s stated intention of working in the motor industry and the potential job offer, that the studies the applicant is undertaking, while not relevant to his past employment, will be relevant to his proposed future employment, either in his home country or in a third country.
(n)The applicant has given evidence of the remuneration he will earn by way of starting salary at Vishawkarma Agro Industries, and also in his business plan, which of course must be tempered with an expression of hope rather than hard facts, but nevertheless does present a situation going forward where his earnings will be significant.
(o)When questioned why it may be the situation that the applicant would wish to stay in Australia to study, he did sing Australia’s praises in that regard but said he is much better positioned in India, particularly because of the family situation where he will have family premises to operate his business, which will cut down on the costs of acquisition of property in that regard.
(p)At hearing, the applicant had been in Australia for a little over five years, during which time he had not been back to India or, in fact, travelled out of Australia in that time. He has completed in that time two English courses, an MBA, which did take some extra 18 months due to ill health which the Tribunal, as noted previously, does not hold against the applicant, and he is also halfway through his vehicle mechanic studies, having already completed his Certificate III in Light Vehicle Mechanical Technology. His current enrolment will see him stay in Australia to the end of this year, meaning he will have stayed in Australia for approximately five years and 10 or 11 months, depending on when he actually leaves Australia, but more likely five years and 10 months from his initial arrival to the time he departs Australia to return to his home country for his future working life.
(q)As to previous visa applications for the applicant, but for the current visa application under review, the applicant has successfully previously been granted two student visas. There is no evidence before the Tribunal, other than the current visa, that any of the applicant’s visas have been refused.
(r)Similarly, there is no evidence before the Tribunal that the applicant has had any visas cancelled. The applicant said in his submissions, and there is no evidence to contradict this, that the applicant has complied with the conditions of his visas during his time in Australia.
(s)As for travel to other countries, there is evidence before the Tribunal that the applicant has travelled to Cyprus, but there is no evidence that he failed to comply with the migration laws of that country.
(t)Were the applicant to remain in Australia for completion of his studies, he would have been in Australia, as discussed previously, for approximately five years and 10 months, with no return trips to India during that time. This will be in circumstances where the applicant has completed his two courses of English language studies, his MBA, albeit, as discussed above, in a longer time than might otherwise be expected, but explanations exist for this, and he has completed a Certificate III. The Tribunal is prepared to accept that this is evidence of someone who has progressed in his studies. While it cannot be accepted, as said, that it was completed at a normal rate, it has certainly proceeded at a rate that is not significantly over time and his time in Australia has not been excessively long, given the qualifications he will obtain in the time in Australia. All this leads the Tribunal to the conclusion that the use of the applicant’s student visa is not for the maintenance of ongoing residence in Australia.
(u)As there is no child secondary applicant, it is unnecessary for the Tribunal to make any findings in respect to the intentions of the applicant as a parent.
(v)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.
Balancing all of these findings, the Tribunal considers that the weight of evidence points slightly more to those factors favouring the applicant’s case rather than those factors which are not supportive of his case or are neutral to his case. In that balancing exercise, and weighing all the particular factors, the Tribunal does consider that the particular factors do weigh more heavily, albeit slightly, but nevertheless in favour of establishing that the applicant does have a significant incentive to return to his home country, and that the student visa is not being used to maintain ongoing residence in Australia.
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
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

[2020] AATA 2893

9 April 2020

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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