Jaswinder Singh (Migration)

[2019] AATA 6237

Jaswinder Singh (Migration) [2019] AATA 6237 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder Jaswinder Singh

CASE NUMBER:  1904617

HOME AFFAIRS REFERENCE(S):          BCC2018/5417308

MEMBER:Meredith Jackson

DATE:3 December 2019

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations.

Statement made on 03 December 2019 at 1:47pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– satisfactory academic progression – genuine student – genuine temporary entrant to Australia – frank assessment of the relevant attractions of India – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 499
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 Home Affairs on 8 February 2019 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 3 December 2018. 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) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 28 November 2019 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages and in part, in Hindi. During the hearing, the applicant’s migration agent Mr Dhaval Rajendra Mandan expressed a concern that the interpreter was not clearly interpreting English language remarks and questions, and as a result the applicant was not addressing them in a direct manner. The Tribunal addressed the migration agent’s concerns with the interpreter on this occasion and other occasions when the issue of interpretation was raised by the migration agent. Agreement was reached with the applicant that the hearing would proceed in Hindi. The remainder of the hearing was conducted in Hindi and the applicant’s migration agent expressed there were no outstanding issues regarding interpretation.

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 is a genuine applicant for entry and stay as a student.

   Case summary

8. The applicant is Mr Jaswinder Singh, a citizen of India. He entered Australia in September 2018 on a visitor visa and applied for the student visa under review on 3 December 2018. He was refused the visa because the delegate was not satisfied he intends genuinely to stay temporarily in Australia. Mr Singh claims he wants to study here because of the quality of the education system and in India, mature students are the subject to ridicule in class. Previously he lived in Dubai for six years, driving trucks. He is currently enrolled in an Advanced Diploma of Business, having completed a Diploma of Business. He claims he does not want to stay in Australia because life here is hard. He wants to return home to India at the end of his studies to run a business in conjunction with his brother, an Australian citizen who goes back to India regularly.

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

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?

10. 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.

11. 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.

    Documentary submissions prior to and after hearing

12. The applicant provided the following documentary submissions:

    a.Statutory declaration from his brother Baldev Singh accepting responsibility for the applicant’s financial needs and welfare; statutory declaration from his sister-in-law;

    b.Personal submission concerning the applicant’s circumstances including aspects of the difficulty in studying as a mature student in India; the nature of life in Australia (where, he says, old people working in supermarkets have nowhere to sit); his and his family’s attachment to its agricultural land holdings in India; his house in India; that he loves family and his nephews and nieces; that he could not hope to open a business in Australia because he does not have the means; he does not have the English language to meet government requirements to stay; his brother is supporting him but he cannot continue to do so as he has his own family to support;

    c.Travel booking records for a trip to India in 2019-2020;

    d.Academic award for applicant’s Diploma of Business;

    e.Overseas student health cover to 15 November 2020;

    f.Financial details for applicant’s sister-in-law and a claim she has in excess of $19,000 in an Australian bank account (account details supplied);

    g.Applicant’s senior secondary school examination results (Pass).

    The hearing

13. Adopting the procedure of s.359AA of the Act, the Tribunal stated it had information it would put to the applicant regarding the delegate’s decision, which had not been supplied to the Tribunal with the review application. The Tribunal read the main points of the decision to the applicant and explained its relevance to the decision.

14. The applicant’s migration agent expressed a concern that the interpretation into Punjabi was not effective and the parties and Tribunal agreed the main points could be interpreted in Hindi as all parties understood the language. The main points were reiterated and the applicant and his migration agent were satisfied the information had been correctly interpreted and he understood the information and its relevance. The applicant did not request extra time to consider the information.

15. The applicant stated at the hearing:

    a.His plan is to complete his study and start a business in India; he could not have studied in India, because after a certain age, mature students are laughed at, he had experienced this in class while studying for an IELTS examination (English language);

    b.He wants to start the business with the help of his family, they were all there and that is why he will go home, he wants to spend his life with them;

    c.He prefers India to going back to the UAE because it is not his home country;

    d.His brother is an Australian citizen and he has his own life here, he does not want to settle in Australia with his brother he just wants to study here and get qualifications he could not get in India, and then go home; he finds the life his brother lives in Australia to be hard;

    e.There was no obstacle to him returning home; he India is easier including economically because he sees his brother and sister in Australia are always very busy, one or other of them is always coming or going to work;

    f.His brother and sister-in-law are supporting him financially; but it can’t go on because his brother has his own life to live;

    g.He has no wife here, his brother goes to India every year for two months, so he will see him regularly; he could marry here but he does not want to stay here, he had that option, to marry and stay, but he does not want it, he wants to go back;

    h.He has a “golden chance” to study in Australia, the value of the two courses he is doing here are giving him qualifications and lots of ideas; he is going well in the current course academically;

    i.He had not given any thought to seeking a permanent visa in Australia; if he wanted to do that he would have chosen a course that would have helped with that, but he did not, because he wanted to study and then go home;

    j.He has not applied for visas other than in Australia and the UAE and has always abided by visa rules; he did not need to have health insurance but he did it because it was required for a student visa;

    Analysis and conclusions

16. The Tribunal has considered the applicant’s circumstances against the requirements of Direction 69. The Tribunal overall found the applicant to be a credible witness and there is no evidence before the Tribunal that he has taken any sort of calculated action to increase his chances of remaining in Australia as a permanent resident; rather, he appears by his record to have acted in good faith and advanced himself academically through the Australian student visa program. In response to the Tribunal’s questions, the applicant stated that if he had wanted to remain Australia, he would have studied something that might have increased his chances. If he had wanted to marry someone here and seek a partner visa, he claims he had that opportunity but did not want to that.

17. The applicant gave a frank assessment of the relevant attractions of India compared with Australia: he finds the life here hard on people. He states that old people working in supermarkets in Australia are not able to sit; that his brother and his wife are striving hard to pay off a house and it will take them 30 years; whereas he has a house in India, his family has agricultural land; he has a large extended family there and he wants to be with them. He appears genuinely pleased that nobody in the Australian education system laughs at him for being a mature student as he claims they did in India, but, once his study is over and his gains have been made, he wants to go home.

18. In relation to his academic progression, the Tribunal notes he has been in Australia little more than a year and has already completed a Diploma course while awaiting a visa outcome, and has embarked on an Advanced Diploma. In other words, having completed and passed one course, he is seeking to complete and pass a higher level course in the same discipline. This amounts to reasonable academic progression in the time frame.

19. His courses are generic courses that will not necessarily channel him into a profession or skilled occupation, rather they will enable him to work at a higher level than trucking, and potentially run a business in the area of trucking, where he has extensive experience from the UAE, so his future plan is consistent with his background. He states firmly that any business, even one supported by his Australian brother, will be in India.

20. The applicant claims he has not applied for visas in other countries and has spent enough time in the UAE; he claims he has always abided by visa conditions. The Tribunal has no evidence before it that he will do otherwise on a student visa and is satisfied he will abide by visa conditions.

21. On balance, the Tribunal is satisfied the applicant is a genuine student and a genuine temporary entrant to Australia. 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).

22. 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.

23. 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

24. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl.500.212 of Schedule 2 to the Regulations

    Meredith Jackson
    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.