Harpreet Kaur (Migration)

[2020] AATA 2075

Harpreet Kaur (Migration) [2020] AATA 2075 (7 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Harpreet Kaur
Mr Arvinder Singh

CASE NUMBER:  1809447

HOME AFFAIRS REFERENCE(S):          BCC2017/4924661

MEMBER:Lisa Hannon

DATE:7 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 07 March 2020 at 4:13pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as a student – completion date for spouse’s course – spouses swapping enrolments to maintain visas – commendation for excellent academic progress – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.212, 500.311

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 20 March 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 December 2017. 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 primary applicant did not satisfy the requirements of clause 500.212 in Schedule 2 of the Migration Regulations 1994 (Regulations) was met.  In particular, the delegate was not satisfied that the primary applicant intends to stay temporarily in Australia.  In respect of the dependent applicant, the delegate found that he did not satisfy clause 500.311 (Decision).

4. The applicants appeared before the Tribunal on 5 August 2019 to give evidence and present arguments.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the Decision should be set aside, and the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary entrant within the meaning of clause 500.212(a) in Schedule 2 of the Regulations.

8. 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?

9. 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.

10. 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.

11. The primary applicant is a 30 year old Indian woman who arrived in Australia on 25 November 2017, holding a TU500 student (dependent) visa.  Upon arrival in Australia, the primary applicant declared that she intended to stay for one month, and gave her usual occupation as “housewife”.

12. The primary applicant’s visa was granted on the basis that her husband, the dependent applicant to this application, was still studying in Australia, and due to finish his course shortly.  The delegate noted that the primary applicant’s spouse, also an Indian citizen, had been living and studying in Australia on a temporary visa since 27 May 2009.  It was observed that Mr Arvinder Singh had remained in Australia whilst studying a series of low cost vocational courses, ranging in discipline from hospitality, to business studies, to automotive management.  The delegate formed the view that the primary and dependant applicant had engaged in practice colloquially known as “role swapping”, whereby the primary applicant (previously the dependant spouse) had sought to enrol in a course of study and become the primary applicant on the basis that it was more likely that they would be granted a student visa.

13. As part of her application for a student (dependent) visa, the primary applicant said (by way of submission):

    “… the Applicant is married to Mr Arvinder Singh who is currently in Australia on a student visa; therefore the Applicant only wishes to join her husband and live with him until he completes his education in Australia.  Mrs Kaur instructs us that they married in December 2015 and it has already [sic] 14 months passed for them to living [sic] apart from each other … She further adds that she feels very lonely … their unnecessary separation and social pressure of living alone after marriage are making her feel vulnerable. Therefore, I submit that the Applicant is a genuine temporary entrant and only wishes to join her husband in Australia so she can live with him until he completes his study”.

14. However, shortly after her arrival in Australia, the primary applicant on 22 December 2017 lodged a student visa application, for a prospective visa grant period to 19 May 2020. The delegate also noted that the primary applicant’s husband’s course had concluded prior to the primary applicant’s eventual arrival – that, in effect, there was no need for her to visit her husband, as he had completed his own course of study and was now free to return to India to be reunited with his wife.

15. At the time of making her student visa application, the applicant was enrolled in a Master of Information Technology (Enterprise Systems and Business Analytics) at Federation University.  The course was for a two year duration, and estimated to complete on 19 March 2020

16. The primary and dependant applicants were invited to, and did, provide a written response to the Tribunal to a request for student visa information under s.359(2) of the Migration Act, together with written submissions and supporting documents (Response). 

17. The Response disclosed, inter alia, the following relevant matters:

    (a)before coming to Australia, the primary applicant had completed an undergraduate degree, a Bachelor of Science, majoring in computer science;

    (b)before coming to Australia, the primary applicant had had worked as a teacher, but found her qualifications limited her opportunities;

    (c)before coming to Australia in 2017, the primary applicant completed a 1 year diploma course in Computer Application from A One Institute in Punjab, to update her information technology skills;

    (d)no information was given about community ties in either India or Australia;

    (e)no information was given about the primary applicant’s assets in either India or Australia, save that it was indicated that the primary applicant’s father-in-law was sponsoring her study in Australia, and copies of relevant bank statements were provided;

    (f)the primary applicant had by that time completed 12 units of the Master of Information Technology, and had earned 3 credits, 6 distinctions, and 3 high distinctions; and

    (g)the primary applicant had formed the view that whilst she could study a similar course more cheaply in India, the value of the Australian qualification was higher to her future career prospects.  She intends to seek middle to high level managerial roles in India with IT companies.

18. At the hearing, the primary applicant told the Tribunal that she had completed her third semester, and was presently studying her fourth semester.  The course is to complete in March 2020.  The primary applicant’s academic progress in the course today is excellent, and she has been favoured with a letter of commendation from the Dean.  The primary applicant had received a further high distinction for her most recent course study unit.

19. The primary applicant was questioned about some of the concerns raised by the delegate in the Decision.  The delegate was troubled by the way in which the primary applicant arrived in this country, and that she had not been truthful about her intention to study on her initial visa application. 

20. The primary applicant told the Tribunal that she had met some student friends once she arrived, and after making enquiries of available courses, decided to pursue her further studies here.

21. When asked about the fact that the delegate had found that she had booked an English proficiency test prior to her arrival, the applicant said that she in fact booked it after her arrival, in December 2017.  The Tribunal accepts the applicant’s evidence in this regard.

22. The dependant applicant completed his studies in late 2017.  There appears to be a discrepancy in the date of the conclusion of the course as identified on PRISM and the date identified by the dependant applicant.  The Tribunal is unable to conclusively determine whether the dependant applicant’s final course had in fact concluded when the primary applicant arrived.  It gives no weight to this issue in considering the application. 

23. The primary applicant told the Tribunal that her husband was now working as an Uber driver.  Ms Kaur told the Tribunal that she was not working at all, because it had been hard to get work as she did not have sufficient experience.  She said that she will have significant opportunities to find work in India, including as a project manager, program manager, or business leader.  Ms Kaur said that her husband proposed to open a workshop when he returned to India.

24. The applicant’s representative said that Mrs Kaur had tried to come to Australia twice before her student dependent visa was granted, and that given that she had put so much effort into coming, she was determined to make it worthwhile.  He said that greater weight should be given to her efforts whilst in Australia that to any concern about the circumstances surrounding her arrival.

25. The Tribunal’s decision in this matter presents a particularly difficult balancing exercise.  Had the hearing been conducted and the matter determined at a time more proximate to the delegate’s Decision, the Tribunal might well have adopted the same position as the delegate in relation to the primary applicant’s intentions in applying for a student visa.  Certainly, it is extremely difficult to accept that the primary applicant only decided to apply to study in Australia after her arrival on the student (dependant) visa.  It seems much more likely that the applicant formed the intention to study in Australia at an earlier point in time, and that she was not entirely candid with the Department in making either her initial dependant visa application, or her subsequent student visa application.

26. Nevertheless, the Tribunal is required to assess the applicant’s bona fides as a genuine temporary entrant now, and not in 2017.  Whilst what occurred in 2017 did the primary applicant little credit, and is of course very relevant to the Tribunal’s overall consideration of the matter, it is also the case that the applicant has progressed consistently and with good academic progress through a course of study which it appears will culminate with the conferral of a Masters’ degree in March this year.  The Tribunal has, in weighing all of the evidence, accorded significant weight to the primary applicant’s progress through her studies over a 2 year period, in a field that is demonstrably relevant to her proposed career when she returns to India.  In particular, the Tribunal has given some great weight to the fact that, unlike so many other students in a similar position, the primary applicant has enrolled in a single, high value course of study, and has not foreshadowed any intention to engage in further study in Australia.  The primary applicant stated both in writing and before the Tribunal that she intends to return to India with her husband at the conclusion of her Masters’ studies.  Had that position been different, the Tribunal would likely have reached a different determination. 

27. Whilst the Tribunal accepts the delegate’s concerns, since the date of the delegate’s Decision, the primary applicant has diligently proceeded through her intended course of study, maintaining a high attendance level and satisfaction of course requirements, and reiterating her intention to return home upon the completion of those studies.

28. Having regard to all of these matters, but in particular the matters set out in paragraphs 26 and 27 above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant meets cl.500.212(a).

29. Given the above findings, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

30. The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the first named (primary) applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Lisa Hannon
    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;

    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

    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.