Garg (Migration)

[2019] AATA 1464

Garg (Migration) [2019] AATA 1464 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Garg

CASE NUMBER:  1711881

HOME AFFAIRS REFERENCE(S):           BCC2017/929439

MEMBER:Meredith Jackson

DATE:30 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 30 April 2019 at 12:04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – regression in level of study – breach of visa conditions – changes of study direction – coherent plan for the future – affected by personal tragedies – improvement in academic progression – value of course – access Master’s program in India or enter father’s business at management level – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212; Schedule 8 Conditions 8212, 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 9 March 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.

3. On 17 May 2017 the delegate 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 intends genuinely to stay in Australia temporarily.

4.    On 28 November 2018, the Tribunal invited the applicant to a hearing on 9 January 2019.

5.    On 11 December 2018, the applicant requested an adjournment of the hearing on the basis that his mother is listed in India as being missing.

6.    On 11 December 2018, the applicant submitted documents supporting the claim and on the same day the Tribunal accepted the request for a postponement.

7.    On 24 January 2019, the hearing was set down for 27 February 2019. 

8.    On 27 February 2019 the applicant appeared before the Tribunal to give evidence and present arguments.

9.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)

1. 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?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. 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.

Summary of the case

The applicant arrived in Australia on 25 February 2014 on a Student visa to study a package of courses in the higher education sector. He did not study as planned, opting instead to undertake vocational courses at a lower level, potentially breaching his visa conditions. He sought the Student TU 500 visa under review in order to study courses in hospitality and management. The visa was refused on 17 May 2017. The applicant proceeded to study on a Bridging visa while awaiting this review of the decision, achieving a Certificate IV in Commercial Cookery and starting a Diploma of Leadership and Management. In November 2018 before that course was completed, his mother in India was reported missing after contracting breast cancer and experiencing bouts of depression. He returned to India. In January 2019 two of his grandparents died, within a week. The student has returned to Australia and re-enrolled, and is seeking to complete a new Diploma of Leadership and Management in which he is enrolled until May 2020.

Evidence before the Tribunal

1. The delegate’s decision record, which the applicant gave the Tribunal in the review, recorded the following:

   a.The applicant was granted his initial Student visa (subclass 573) on 21 February 2014 to study a packaged program in the higher education sector leading to a Bachelor of Business;

   b.His initial Diploma of Commerce program was cancelled by his education provider due to unsatisfactory course progress;

   c.His Bachelor of Business enrolment was cancelled for non-commencement of studies;

   d.The applicant enrolled in an Advanced Diploma of Management at vocational level and in so doing, did not comply with a visa condition, 8516 (continue to be a person who would satisfy the primary condition for the grant of the visa);

   e.The applicant at no time contacted the department to advise of changes to his circumstances despite the obligation to do so and also did not avail himself of support options for student in compelling and compassionate circumstances;

   f.His proposal when applying for the new visa was to study a Certificate IV in Commercial Cookery and an Advanced Diploma of Leadership and Management to 3 April 2019.

   g.The applicant stated in submissions that he had chosen the first course due to a “passion of cooking that I inherited from my mother” and that once his studies were completed he would return to India;

   h.He had a dream of opening a restaurant, but did not provide any business plans or plans to achieve his goals;

   i.The delegate was not satisfied he was a genuine temporary entrant as a full time student and had a concern about his failure to maintain enrolment and a concern about his change of study direction;

   j.His behaviour was not consistent with that of a person who has invested significant time and finances in his academic future and future career.

   Written material submitted before and at hearing

2. The applicant submitted documentary evidence including:

   a.Academic transcripts for a Diploma of Hospitality completed on 10 January 2017, stating Mr Garg is “a good and diligent student”;

   b.A notarised poster and photograph concerning his missing mother;

   c.A course cancellation note dated 19 December 2018 from New England College;

   d.A Confirmation of Enrolment (COE) for an Advanced Diploma of Leadership and Management for study between 25 February 2019 and 1 May 2020 at Gold Coast International College;

   e.A COE for a Diploma of Management at Australian Careers College from 16 March 2015 to 9 October 2015;

   f.A food safety certification from Food Safety Australia.

The hearing

1. At the hearing, the Tribunal, under section 359AA of the Act, referred the applicant to information about him held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if he wished to seek further time to consider it. The applicant said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case.

2. The applicant stated in response to Tribunal questioning:

   a.The first course he came to study, a Diploma of Commerce, was cancelled because he could not cope with the environment in Australia;

   b.The visa he had was issued for the higher education sector but he did not initially understand the visa conditions;

   c.He had tried to study very hard but became fearful and had nowhere to go so he sought the advice of an agent;

   d.His current enrolment in a course he had commenced in May 2018 and he was doing well and on track to finish in February, but on 22 November 2018 his mother was reported missing in India. She had been suffering depression and breast cancer. His uncle in Melbourne told him he should go to India. He went to his education provider to ask for deferment but his college, New England College, was under review and they could not issue a new COE in the circumstances;

   e.His mother and father had visited him in June and July to try and improve his mother’s mood by seeing him; he wanted to go home but his father had said he must complete his studies; his mother was operated on in August, but she got depression again; he was now regretting it;

3. The Tribunal adjourned the hearing to allow the applicant to compose himself. The hearing resumed and the applicant stated:

   a.He had lost his grandmother on 15 January and a week later lost his grandfather;

   b.He now wanted to fulfil his mother’s dream of him studying in Australia;

   c.In May 2020 when he completed his studies he would return home; his father was a businessman and he would join him in the business; it was a poultry supply business and that was why he had, in the end, studied hospitality and cookery but he needed business skills as well; he had gone to India in 2015 to work out his future plans and his father was opening the poultry farm and a food supply chain;

   d.He understood the migration laws in Australia and was focused on his career outcomes and now intended to finish the studies he started at New England College at a new provider, International College;

   e.He would not study further in Australia, there was a Masters in Hospitality articulation open to him at the University of Delhi if he finished his Diploma course, which meant he could skip doing a Bachelor degree; but if his father’s business needed him he would help out there; either way he would work in the business.

4. The Tribunal at this point raised that his record was understandably disrupted by his tragedies, but it remained the case that he had made major changes to his study path, and potentially breached his visa conditions. The Tribunal stated it would take his circumstances into account but it might have a concern that the applicant would, in the wake of the tragedies, want to make a new life in Australia.

5. The applicant commented:

   a.There were only his father and brother in India now and he was intending to go home to them, but first he needed to complete his studies in accordance with his mother’s wishes; his income within the business would expand with his skills applied; he had prepared a business plan in 2017 and bought land for food production but things had been messed up by the tragedies, therefore a new plan was called for;

   b.He had always abided by visa conditions and not applied for other visas in Australia or other countries.

Conclusions

1. The Tribunal has considered the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to his 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; other relevant information provided by the applicant and information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant. Its conclusions are:

   a.The Tribunal considers the applicant’s study path was circuitous and was inconsistent with the purposes for which he was granted his initial TU 573 Student visa. He did not progress to his Bachelor level study as intended, and chose to study hospitality and cookery instead. The Tribunal weighs this consideration against the applicant.

   b.The applicant has now embarked on a coherent pathway and has a plan for his future. He has done so despite a series of personal tragedies affecting him, the most compelling of these being the disappearance of his mother in India which he states followed her contracting breast cancer and bouts of depression. The applicant credibly argues that his study record had improved before being notified of his mother’s disappearance. He also claims he properly sought the approval of his education provider to suspend his studies and return to India to attend to his family, but was unable to do so because the college, New England College, was at the time prevented from issuing new COEs. He did return to Australia and enrol in a similar course in order to gain the qualification he had to abandon due to the tragedy. He has mapped out a pathway for his future once his studies are completed in 2020 and explained it coherently to the Tribunal. It includes the potential to undertake a Master’s program in Delhi and manage the family business using his hospitality and business qualifications. The Tribunal affords this consideration weight in the applicant’s favour.

   c.The applicant’s record of complying with visa conditions is not flawless. He potentially breached visa conditions 8516 (continue to be a person who would saisfy the primary condition for the grant of the visa) and 8212 (remain enrolled and achieve satisfactory course attendance and progress). He submits that he was young and alone when he first came to Australia and was unsure of his options, and fearful of consequences, when he could not keep up with the work. The applicant acknowledges his failings in this regard. The Tribunal considers the onus to comply with visa conditions is on the applicant, and weighs this consideration against him.

   d.The applicant has overcome his early study delinquencies to now set himself on a path to academic attainment that ultimately will provide him with access to a Master’s program in India or allow him to enter his father’s business at management level. The Master’s articulation is based on being able to complete his current Australian Diploma course and  gain enough credit to articulate directly, rather than having to complete a Bachelor degree, and as a result he will be in a position similar to that he would have been in if he had completed his Business degree in Australia.

2. On balance, and weighing the conclusions above, the Tribunal finds in the applicant’s favour because it accepts the improvements he has made to his study progression are genuinely and maturely undertaken and that the applicant has overcome significant obstacles in his personal and family life to remain in his current academic position.

3. 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).

4. 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.

5. 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

1. 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.

Meredith Jackson
Member

Attachment – Direction No.69

DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 of Direction No. 69 - Preliminary

Name of Direction

This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4. Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.