Ghotra (Migration)

[2019] AATA 2583

Ghotra (Migration) [2019] AATA 2583 (20 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Parminder Singh Ghotra

CASE NUMBER:  1723051

HOME AFFAIRS REFERENCE(S):           BCC2017/2845436

MEMBER:  M. Edgoose

DATE OF ORAL DECISION:  20 May 2019

DATE OF WRITTEN STATEMENT:         23 May 2019

PLACE OF DECISION:  Melbourne, Victoria

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Student (Temporary) (Class TU) visa.

Statement made on 23 May 2019 at 11:58am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history – short inexpensive courses – length of time onshore – limited travel home – reasons for studying in Australia – value of course – Diploma of Leadership and Management – relevance to future employment – transportation industry – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 19 September 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 August 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. The delegate in this case refused to grant the visas 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 temporarily in Australia.

4. The applicant appeared before the Tribunal on 20 May 2019 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

Case Number 1723051  Page 2 of 12

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.

   The applicant’s immigration history

3. The applicant first arrived in Australia on 19 March 2014 on a 573 Student Visa that was granted under the Streamlined Visa Processing arrangement based on enrolment in a Bachelor of Business (Accounting) through Victoria University which the applicant did not complete. During his time in Australia the applicant has never completed a course at the Higher Education Sector level however has completed a range of lower level VET sector certificate and diploma level courses in the areas of accounting, cookery and hospitality management. The last course the applicant completed was a Diploma of Hospitality Management on 28 August 2017.

4. At hearing applicant stated that he has not been enrolled in or completed a course of study since 28 August 2017. The applicant submitted to the Tribunal a Confirmation of Enrolment (COE) for a Diploma of Leadership and Management course beginning on 8 August 2019 and to be completed by 5 August 2020. The applicant obtained this enrolment on 12 March 2019 only after the Tribunal had invited the applicant on 3 April 2019 to provide information under section 359(2) of the Migration Act 1958 by 17 April 2019. The applicant responded to the Tribunal with the above COE attached and his response to the 359(2) request for Student Visa Information on 15 April 2019.

5. The applicant applied for his current Higher Education Sector Student Visa on 9 August 2017. The visa application was refused on the 19 September 2017 as the delegate was not satisfied the applicant met clause 500.212(a).

6. The applicant informed the Tribunal that he has only departed Australia on two occasions since arriving in Australia in March 2014. The applicant stated that he returned to his home country of India in September 2018 for a period of 22 days as his mother was not well. The applicant stated to the Tribunal that in February 2018 he had travelled to Bali, Indonesia for

   Case Number 1723051  Page 3 of 12

a period of 3 days had no visa issues. The Tribunal considers the applicant’s travel movements neutral.

1. The Tribunal does not make an adverse finding against the applicant in terms of Clause 14(a) of Ministerial Direction 69, as there was no evidence before the Tribunal that the applicant had made previous applications for Australia or other countries. In relation to Clause 14(b)(i), (ii) and (iv) of Ministerial Direction 69, the Tribunal does not make any adverse findings against the applicant.

2. In relation to Clause 14(b)(iii) of Ministerial Direction 69, the Tribunal is of the view that the applicant has undertaken a series of short inexpensive VET sector courses and is using the student visa programme primarily for maintaining ongoing residence in Australia.

   The applicant’s circumstances in their home country

3. The applicant informed the Tribunal that he had not completed his studies back in India because “The education facilities is not good in my home country that is why I choose Australia to better study and make my future bright.” The Tribunal does not accept the applicant’s statement given that India has a range of world-class educational facilities and that the applicant came to Australia having only completed the equivalent of year 12 in March 2013. The applicant never started or completed a course of study post high school back in his home country of India. The Tribunal considers that the VET sector courses he has completed in Australia in the areas of accounting, cookery and hospitality management are available back in his home country. The Tribunal considers that a Diploma of Leadership and Management, or a similar course, is available in the home country or region of the applicant. The Tribunal finds the applicant does not have reasonable reasons for not undertaking a Diploma of Leadership and Management in his home country or region.

4. The applicant informed the Tribunal that his personal ties back in his home country of India are his father, who is a policeman and his mother, who is a housewife. The applicant said to the Tribunal that he maintains contact with his parents back in India on a daily basis via telephone. In these circumstances, the Tribunal does not consider that the applicant’s personal ties overseas would serve as a significant incentive to return to his home country and for the applicant to cease residence in Australia.

5. The applicant stated at hearing that before coming to Australia he had never worked and only completed his Year 12 equivalent in March 2013. The applicant stated to the Tribunal that he is not currently working and that he is being supported financially by his parents and friends. The applicant informed the Tribunal that he had worked part-time as a kitchen hand from January 2015 until January 2018 and was paid AUD500 per week and as a security guard between January 2017 and December 2017.

6. The applicant informed the Tribunal that he currently lives in Tarneit with five friends and that he contributes AUD200 per month towards the rent and that he owns a car. Considering the applicant never worked before coming to Australia the Tribunal finds that the economic circumstances within Australia for the applicant, where he had worked for an extended period of time in Australia and since January 2018 has been financially supported by his parents and friends, would present a strong incentive for the applicant not to return to his home country.

7. The applicant informed the Tribunal that he has no concerns or requirements regarding military service commitments or political or civil unrest in his home country of India. The Tribunal accepts the applicant’s evidence that he does not have any military service commitments in his home country and he is not aware of any political or civil unrest in his home country.

Case Number 1723051  Page 4 of 12

1. The Tribunal does not make an adverse finding against the applicant in terms of Clause 10 of Ministerial Direction 69, as there was limited evidence before the Tribunal in regards to the applicant’s circumstances in his home country relative to the circumstances of others in that country

   The applicant’s potential circumstances in Australia

2. The applicant has significant ties within Australia, most notably the friends that he lives with in Tarneit and the friendships that he has developed when he attends temple in Tarneit and Hoppers Crossing. The Tribunal considers that the applicant does have significant ties within Australia and that this would present a strong incentive to remain in Australia.

3. At hearing the applicant informed the Tribunal that he intends to start the Diploma of Leadership and Management on 8 August 2019 through Gen Institute at a cost of AUD6000.This course is due to be completed by 5 August 2020. At hearing the applicant stated that after the completion of this course he wishes to remain in Australia to complete a bachelor course of some description before returning to his home country of India. This would take his time in Australia to approximately 10 years. The Tribunal considers the applicant could have already completed the 12 month VET sector Diploma of Leadership and Management course between August 2017 and August 2018 and that he would have already started his bachelor course. The Tribunal acknowledges that up until August 2017 the applicant had completed each of the VET sector courses he had enrolled in, however he never completed a course at the Higher Education sector level for which he was granted his initial student visa. The applicant after his visa application was refused on 19 September 2017 has been on a Bridging Visa A where he had full permission to study and he has chosen not to do so. The applicant obtained enrolment on 12 March 2019 only after the Tribunal had invited the applicant on 3 April 2019 to provide information under section 359(2) of the Migration Act 1958 by 17 April 2019. The applicant responded to the Tribunal with the above COE attached and his response to the 359(2) request for Student Visa Information on 15 April 2019. The Tribunal has little faith that the applicant will actually commence this course. For these reasons, the Tribunal finds the applicant is using the student visa programme circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

   Value of the course to the applicant’s future

4. The Tribunal considers the future course the applicant is enrolled in is at the same VET sector level he has completed during his time in Australia. The Tribunal does not accept that the Diploma of Leadership and Management is at the next level in which the applicant should be enrolled in. The Tribunal is not satisfied the applicant will actually commence or complete the course given that he has not completed or been enrolled in a course for approximately two years and that this course is not due to start for a further three months, that being 8 August 2019.The applicant first arrived in Australia on a Higher Education 573 student visa to complete a Bachelor of Business (Accounting) through Victoria University which he did not complete and subsequently has only completed a range of lower level VET sector courses in the areas of accounting, cookery and hospitality management. The applicant stated at hearing that after the completion of the Diploma of Leadership and Management course he intends to remain in Australia to study a cause of some type at the Bachelor level. The Tribunal considers the applicant’ s future plans do not lie out of Australia and that he is using the student visa to maintain ongoing residence in Australia. The applicant stated that on his return to India in the future he plans to work in the transportation industry and will be remunerated in the vicinity of AUD12300 per year. The Tribunal considers the applicant’s future plans to be both speculative and vague. The Tribunal, in taking into consideration the evidence provided by the applicant at hearing, is of the view that the relevance of the course to the applicant’s proposed future employment either in the

Case Number 1723051  Page 5 of 12

home country or a third country is not relevant, given that he plans to work in the transportation industry. The Tribunal considers that applicant has already gained the relevant qualifications and work experience to pursue a career in the transportation industry.

1. The Tribunal considers the applicant’s primary reason for remaining in Australia is to remain enrolled in courses of study to meet the requirements of being granted further student visas so that he can maintain ongoing residence in Australia and that the student visa programme is being used to circumvent the intentions of the migration programme.

2. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

3. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   M. Edgoose
   Member

Case Number 1723051  Page 6 of 12

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.

Case Number 1723051  Page 7 of 12

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.

Case Number 1723051  Page 8 of 12

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

Case Number 1723051  Page 9 of 12

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;

Case Number 1723051  Page 10 of 12

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.

1. 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

Case Number 1723051  Page 11 of 12

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 non­compliance

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.

Case Number 1723051  Page 12 of 12