Gill (Migration)

[2023] AATA 1683

Gill (Migration) [2023] AATA 1683 (6 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harjeet Singh Gill
Master Varjodh Singh Gill
Master Jashraj Singh Gill

REPRESENTATIVE:  Mr Shubham Aggarwal (MARN: 1791186)

CASE NUMBER:  2203169

HOME AFFAIRS REFERENCE(S):          BCC2019/6184091

MEMBER:Wendy Banfield

DATE:6 June 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 06 June 2023 at 3:55pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – property and business ownership in India – immediate family in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212. 500.312

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 Home Affairs on 25 February 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 November 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant met the criteria of a genuine temporary entrant.

4. Harjeet Singh Gill appeared before the Tribunal on 20 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were assisted in relation to the review.

6. Prior to the hearing, the applicants provided the following submissions:

   ·Notification and decision of the Department of Home Affairs (the Department) dated 25 February 2022.

   ·Passport biometric information for the secondary applicants.

   ·Computation of Income form for Harjeet Singh Gill dated 31 July 2022.

   ·Evidence of Indian income tax filing for Harjeet Singh Gill dated 9 December 2022.

   ·Indian valuation report for a residential house in the name of Harjeet Singh Gill and Kuldeep Kaur Gill.

   ·Receipts for Australian education paid by Kuldeep Kaur Gill.

   ·Evidence of completion of a Certificate III in Commercial Cookery by Kuldeep Kaur Gill dated 11 March 2022.

   ·Written statement of the applicant.

7. The Tribunal also considered relevant evidence provided to the Department at the time of application including a genuine temporary entrant statement, evidence of property and assets and support from the applicant’s brother-in-law.

   Evidence at the hearing

8. Harjeet Singh Gill (the applicant) stated his spouse came to Australia in 2019 and was granted a student visa. The applicant returned to India in April 2019 with their children. According to the applicant, after three to four months, he and the children came back to Australia. The primary visa holder is studying cookery and hospitality courses that are due to be completed in February 2023. The applicant said his wife has not thought about any further study. He said the plan is that once his wife finishes studying, they will return to India and open a restaurant.

9. The applicant advised he had been running car sale business with a partner in India which is still in operation. He said his wife will be the one opening a restaurant. The applicant claimed he is not working in Australia and is looking after the children and taking them to school. He said his wife works in a restaurant. Regarding their living arrangements in Australia, the applicant said his wife has two sisters who are Australian citizens, and their husbands are his cousins. The applicant and his family lived with those family members for a year and a half. The minor secondary applicants are attending school in Australia and are aged seven and fourteen.

10. The Tribunal asked about family in India. The applicant said his wife has two sisters and her parents and he has parents who continue to reside there. According to the applicant, his children were at school in India but when they returned from Australia, their classes had finished, and they were missing their mother.

11. The applicant stated he had not applied for any other visas except visitor and student. When asked about incentives to return to India, the applicant declared he has lots of property there. He said they have a house in India and have to go back. The applicant advised studying here is very good which is why the primary visa holder chose Australia.

    Applicant’s written statement

12. The applicant provided the following submissions in his written statement to the Tribunal:

    ·His wife is close to completing her Diploma in Hospitality Management and the family want to accompany her until then, the children need their mother, and the applicant supports her with household chores.

    ·The applicant’s children are studying in Australia and his wife can help them with their primary education.

    ·The applicant applied for a student dependent visa because after returning home to India it was very hard for the family.

    ·Although the applicant has an Australian citizen sister-in-law, he is only concerned with his own family, his wife’s education, and their children.

    ·Once his wife finishes her studies they will go back to India and set up a family business, there is no incentive to stay longer.

    ·The applicant has a business in India that is looked after by a partner, and he has enough assets to help his wife set up a hospitality business.

    ·The applicant will not seek any further student visas as he plans to return to take care of his parents and he wants his children to grow up back home.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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 applicants meet the criteria of genuine applicants for entry and stay as members of the family unit of a person who holds a Student Visa, in accordance with the Migration Regulations.

15. Clause 500.312 requires as follows:

    The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa 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?

16. 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.

17. 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.

18. The Tribunal considered the secondary applicants’ circumstances in their home country. The applicant declared he has a business that is being run by a partner, and his children had been attending school in India. The applicant and his wife, the primary visa holder both have parents who continue to live in India. The applicant provided evidence of residential property owned by himself and his wife, as well as other assets and records of income. In assessing the extent of the applicants’ personal ties to their home country, the Tribunal accepts the applicant Harjeet Singh Gill has other family members in India, however, his immediate family, that being his wife and children are with him in Australia. The Tribunal is not satisfied the presence of his parents or in-laws are sufficient reason for him to return. Regarding the applicant’s economic circumstances, evidence was provided indicating the applicant and his wife own property in India, and he derived income from a motor vehicle business. The Tribunal accepts the applicant has economic ties to his home country but notes he was able to make other arrangements to stay in Australia for an extended period at short notice. In addition, businesses and residential property can be sold or managed by others in the absence of the owner, as is occurring with the applicant’s business interest. For this reason, the Tribunal is not satisfied the applicants’ circumstances in their home country would serve as a significant incentive to return.

19. The applicant Harjeet Singh Gill submitted that while his wife is studying in Australia, he is assisting with household duties and their children attend school so as not to waste time and opportunity. On the evidence provided, the Tribunal finds the applicant has ties in Australia that would present as a strong incentive to remain. These include family and community ties. The applicant’s wife has Australian citizen relatives in Australia with whom the family resided for 18 months. The applicant’s brother-in-law provided a statutory declaration at the time of application indicating he can support the family while they are in Australia, and the applicant’s wife has employment. In addition, the applicant’s children currently attend school in Australia and although the applicant said he wants them to grow up and develop in their home country, the Tribunal considers the children’s education in Australia is nonetheless an incentive to seek to remain. 

20. The value of the course being undertaken by the primary visa holder is not relevant in the case of a secondary visa applicant.

21. The applicants’ immigration history in Australia includes both their visa and travel history. As noted by the Department in the decision record of 25 February 2022, the applicant first arrived in Australia as the holder of a temporary visa in April 2019. The applicant departed Australia on 11 June 2019 and returned on 8 September 2019. The delegate was concerned that when the applicant applied for the Visitor visa on 3 January 2019, they stated an intention to return to their home country after a stay of 7 days, on 12 February 2019. However, within a short period of time after returning to Australia on 8 September 2019, the applicant changed their plans to a stay in Australia of over 3 years (as of the date of the Department’s decision). The applicant advised he had initially travelled to Australia to visit his sister-in-law and after returning to India, his children missed their mother and did not want to be separated. The Tribunal accepts the children of the applicant would want to remain with their mother but shares the concerns of the delegate about the immigration history of the parties, particularly since the applicant and his children have now been in Australia for three years and eight months since returning for a visit in September 2019. The applicants’ immigration history in Australia weighs against them in the Tribunal’s assessment of whether the applicants meet the genuine temporary entrant criteria, as required for the grant of a student visa.

22. The Tribunal assessed the applicants’ circumstances individually and cumulatively. The Tribunal finds the majority of considerations weigh against the applicants in deciding whether the genuine temporary entrant criteria has been met. On the basis of the above, the Tribunal is not satisfied that the applicants intend genuinely to stay in Australia temporarily. The Tribunal finds the applicants do not meet cl.500.312.

23. Accordingly, the Tribunal is not satisfied that the applicants are genuine applicants for entry and stay as required by cl.500.312.

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

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

    Wendy Banfield
    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

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

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

    8.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

    9.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.

    10.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

    11.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;

    d.whether 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

    12.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

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

    14.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

    15.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

    16.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.