Ghuliani (Migration)

[2019] AATA 3550

Ghuliani (Migration) [2019] AATA 3550 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sippy Ghuliani

CASE NUMBER:  1717191

HOME AFFAIRS REFERENCE(S):           BCC2017/1563268

MEMBER:Peter Booth

DATE:16 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2019 at 10:19am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – enrolment in a registered course – applicant’s personal ties to India – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 17 July 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 1 May 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 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).

4.    By letter dated 26 October 2018 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information  in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 9 November 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5.    In her handwritten  response dated 8 November 2018, the review applicant indicated that she consented to the matter being determined without a hearing The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6.    The applicant stated that she had researched courses in Australia by using the internet, internet chat rooms and by talking to friends. She further stated that she considered hospitality to be a growth industry and that having qualifications in the industry would assist her in establishing her own business in India. She observed that she had family connections in India including a husband and elderly relatives. She stated that she intended to return to India after completion of her studies.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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 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.

3. The applicant was granted a student visa on 5 August 2011 (Class TU – 573 ) and arrived in Australia on 25 August 2011.She departed Australia on 20 September 2015 having been granted a Temporary Work visa ( UC 457 ). This was subsequently cancelled on 26 October 2015 after her then employer entered voluntary liquidation. The applicant was then granted a multiple entry tourist visa (FA 600 ) on 29 September 2016. This visa enabled her to enter Australia for periods of three months until 2 May 2017. At the time of applying for the tourist visa she declared that she intended to visit Australia for a holiday and to stay for 53 days .On 1 May 2017 the applicant applied for a second Student visa (subclass 500 ). She was then enrolled for several courses comprising Certificate IV, Diploma and Advanced Diploma of Marketing and Communication. The courses were to commence on 17 July 2017 and complete by 18 march 2020.The Provider Registration and International Student Management System ( PRISMS ) records show that in addition to those courses the applicant had enrolled in several courses in Australia previously namely, a Bachelor of business on 30 July 2012 cancelled in July 2014 , A Diploma of Business in October 2011 which was completed in September 2012 and an English language course between August and September 2011 which she completed.

4. By email dated 8 November 2018 the applicants migration agent provided several documents, in response to the Tribunals request for information. The documents provided were as follows:

   a.certificate from the Punjab Education Board which showed that the applicant completed secondary school in 2005;

   b.a current passport issued in the applicants name;

   c.a certificate of graduation in 2013 from an Australian education provider, the course of study being a diploma of business;

   d.a certificate stating that she was enrolled in two vocational commercial cookery courses and a diploma of hospitality, the latest of which was scheduled for completion in September 2019. This certificate was corroborated by an Overseas Student Confirmation of Enrolment form;

   e.a statement of her available funds;

   f.evidence of an English language test result;

   g.evidence of current health insurance;

   h.a marriage certificate which showed that the applicant was married in 2011; and

   i.a document titled “Statement of Purpose “dated 8 November 2018. The latter document, from its terms, is clearly intended to be read in support of the application for review.

5. The history of visa applications suggest that the applicant is intending to live and work in Australia indefinitely, having first arrived in 2011 on a student visa with several visa applications in between she has resided in Australia for various periods of time since then. If allowed to stay until the completion of the current courses she will have resided in Australia on and off for a period of nearly nine years. The Tribunal notes also that she has downgraded her study level from Bachelor’s degree to now Diploma level study. This is inconsistent with the behaviour of  a genuine student in the Tribunals view.

6. It is also significant that the applicant has not worked in India since June 2015 and has not demonstrated any business plan or opportunities pursuant to which she will or intends to utilise the qualifications which she hopes to achieve by study in Australia. The Tribunal notes that in a statement dated 20 June 2017 the applicant made several references to an intention to return to India to start a business. However no details of the business were provided and the tribunal gives the assertions little weight. The applicant’s circumstances suggest that she does not have strong economic reasons to return to India. Her relatives reside in India but the Tribunal considers that whilst family ties could be important they are outweighed by the other matters described above.

7. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to India.  The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

8. The Tribunal has considered the applicant’s personal ties to India.  While the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

9. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

10. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

11. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant, any potential military service in India, political or civil unrest circumstances in India, remuneration the applicant could expect to receive in India or a third country compared with Australia, circumstances in India relative to Australia or any other country and the applicant’s circumstances in India relative to others in that country.

12. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

13. 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).

DECISION

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

Peter Booth
Member