JAGDEEP SINGH (Migration)

[2019] AATA 5887

JAGDEEP SINGH (Migration) [2019] AATA 5887 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  JAGDEEP SINGH

CASE NUMBER:  1801969

HOME AFFAIRS REFERENCE(S):          BCC2017/4327166

MEMBER:D Triaca

DATE:6 December 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 06 December 2019 at 10:33am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – COE provided – came here on entertainment visa – financially supported – lack of incentive to return home – genuine intention to study – academic progress – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359, 499
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 Home Affairs on 8 January 2018 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 17 November 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that 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 genuinely intends to stay temporarily in Australia as a full time student.

   Genuine applicant for entry and stay as a student (cl.500.212)

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 applicant is a 27 year old citizen of India. He arrived in Australia in November 2017 on an Entertainment Visa. Whilst on shore he applied for a student visa on 17 November 2017. On 8 January 2018, his visa was refused by a delegate of the Department (delegate’s decision). On 25 January 2018 he applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.

12. On 3 October 2019 the Tribunal wrote to the applicant to request further information pursuant to s 359 of the Act and on 17 October 2019 the applicant provided the Tribunal with further and additional information including written response to the Tribunal’s request (359 Response).

13. On 15 November 2019 the applicant filed written submissions in support of the application.

14. The Tribunal has read and had regard to the applicant’s submissions, his 359 Response, the delegate’s decision and documents provided by the applicant to the Department and the Tribunal including his application for a student visa 17 November 2017, Confirmation of Enrolment, evidence of his overseas studies, IELTS results, Certificate of Overseas Health Cover, Identity Evidence, Passport Extracts. Statement of Purpose.

15. The applicant has a Confirmation of Enrolment (CoE) from Duke College. He is enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at Duke. He is due to complete this study in January 2021.

16. This is a difficult case to assess. The applicant arrived in Australia in November 2017 on an entertainment visa and appears to have abruptly changed plans to apply for a student visa once on shore. The Tribunal is concerned by the applicant’s change of plans and questioned him about this. He says that once he arrived in Australia he realised that he was in a position to stay as a student so he enrolled in a Diploma of Leadership and Management at Duke College. He denied coming to Australia with a plan to study here.

17. The applicant was part of a troupe of musicians booked for three shows in Australia. He stated he was not aware of the travel plans of his fellow musicians when it was put to him that this was part of a pre-planned effort to prolong his stay in Australia. He says that his cousin suggested that he should enrol as a student.

18. The Tribunal considers that the applicant was relatively young and without any obvious commitments at the time of his arrival in Australia. It appears to be a different scenario to a tourist with a family or employment who suddenly decides to study on a whim. It may be that he did make a spontaneous decision to study. This is not prohibited by the Act or regulations. Nor is applying for a student visa whilst on shore. The Tribunal notes that there is nothing in the schedule 2 criteria which prevents a visa applicant from applying for their first subclause 500 visa whilst they are in Australia holding a Temporary Activity Visa (subclass 408) Entertainment Activities. Instrument IMMI 16/016 contains the full list of visa that prevents the applicant from making a valid application for a subclass 500 visa onshore. The review applicant’s application for a student visa does not come within the list of visas mentioned in 16/016.

19. The circumstances surrounding the applicant’s initial enrolment are also complicated by the fact that he did not appear to have strong reasons for choosing to enrol in the Diploma of Leadership and in these circumstances the delegate refused the application. Reviewing the applicant’s GTE Statement, I agree that there applicant’s reasoning was not particularly convincing. However, assessing the applicant at the time of this decision, nearly 2 years after the initial application, he appears to taken advantage of the time allowed and has applied himself to his studies. He has made good academic progress and is halfway through a Certificate IV course. In those circumstances his reasons for enrolling in his initial course, which he has now completed, are less relevant.

20. I also consider that it is now difficult to assess his intentions in Australia as being anything other than to study, in light of the fact that he has, in fact, studies and made good progress. At the date of the hearing, the applicant had successfully completed a Diploma of Leadership and Management in November 2018. In January 2019 he commenced studying a Certificate IV in Commercial Cookery. He provided the Tribunal with a copy of his academic transcript current to October 2019 which demonstrates that he has completed all over half the units in the Certificate IV course and is on track to complete the Certificate on time.

21. On the evidence, the applicant has continuously studied since arriving in Australia. On any objective view, he has done what a student on a student visa ought to be doing. That is studying in registered courses and progressing academically.

22. The Tribunal considers that it is in the applicant’s favour that, despite the refusal of his student visa by the Delegate, and the uncertainty surrounding his future in Australia, the applicant continued to study. This is indicative of a genuine intention to study and suggests that he was interested in the educational benefits of the student visa rather than using the visa as a means to obtain residence in Australia.

23. The applicant states that he hopes to return home to India and open a restaurant or find work in an International Hotel in the Punjab region of India. The Certificate IV in Commercial Cookery and proposed Diploma of Hospitality Management appear to be relevant to the applicant’s future career and the proposed Diploma is consistent with the applicant’s Certificate IV in Commercial Cookery.

24. The applicant says that he is not working in Australia. He is financially supported by his mother in India and lives with his cousin. It was submitted on his behalf that his family own land in India and that, alone, was an incentive to return home to India. The Tribunal does not accept that submission for a two reasons. First, the land is not in the name of the applicant. Secondly, land held overseas can readily be sold and converted into cash, or retained and utilised to earn income. The Tribunal does not consider that owning property overseas operates as an incentive to return home.

25. However, in circumstances in which the applicant is not working in Australia, the Tribunal does not consider that the applicant‘s economic circumstances are such they operate as a significant incentive not to return home.

26. The applicant‘s family is his Mother in India. He has a Brother in Italy. He says his Father passed away in 2009. He says he speaks to his mother by telephone. The Tribunal considers that in circumstances in which the applicant has been in Australia for two years, is seeking to extend his stay and appears to be able to manage his familial relationships by telephone, the applicant’s personal ties to India do not operate as a significant incentive to return home.

27. There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to others there. There is no evidence before the Tribunal in relation to the applicant’s knowledge of living in Australia. However, the Tribunal considers that the applicant has a sound knowledge of his current course and the future opportunities it may provide if successfully completed.

28. There is no evidence before the Tribunal to suggest that the applicant has any ties to Australia that may operate as a strong incentive to remain. He states that he has a cousin in Australia but, considering his mother remains in India, the Tribunal does not consider the relationship to his cousin is likely to provide him with a strong incentive to remain in Australia.

29. The applicant states that he is not concerned about military service commitments in his home country that may operate as a significant incentive not to return home and the Tribunal accepts this.

30. The applicant states that he is not concerned about political or civil unrest in his home country that may induce him to remain in Australia indefinitely. The Tribunal accepts this.

31. The applicant disclosed that he had previously had a study visa refused in Ireland and a visitor visa refused in the USA in 2012 and 2013. He did not know the reason for this refusal. These refusals occurred some time ago, prior to the applicant being granted a visa to travel to Australia and the Tribunal does not regard these matters as adverse to the application.

32. The Tribunal is of the view that the application by the review applicant is entirely lawful and not prevented or prohibited by any Act, Regulation or Instrument. The Tribunal has assess the above application for a student visa against the criteria set out in cl.500.212 and has had regard to the factors set out in Ministerial Direction 69. Having regard to all the evidence before the Tribunal, it considers that the applicant intends to stay in Australia temporarily as a student. He has resided in Australia for two years and in that time has applied himself to his studies and made academic progress. In those circumstances, the Tribunal considers that he is a genuine student, and intends to stay in Australia temporarily.

33. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

34. There is no evidence before the Tribunal to suggest the applicant will not comply with an conditions attached to his visa. The Tribunal is satisfied the applicant is a genuine applicant for entry and stay as a student.

35. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

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

    DECISION

37. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    D Triaca
    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.