JHORAR (Migration)

[2020] AATA 1058

JHORAR (Migration) [2020] AATA 1058 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VINOD KUMAR JHORAR

CASE NUMBER:  1716529

HOME AFFAIRS REFERENCE(S):          BCC2017/1214685

MEMBER:Brian Camilleri

DATE:13 February 2020

PLACE OF DECISION:  Sydney

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 of the Regulations

Statement made on 13 February 2020 at 3:04pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine applicant for entry and stay as a student–genuine interest in study – positive study record –applicant is currently enrolled – three months to the conclusion of the course – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 July 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy the genuine temporary entrant criterion.

4. The applicant appeared before the Tribunal on 14/03/2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi, Punjabi and English languages. The applicant was assisted in relation to the review by his registered migration agent.

5. The Tribunal notes the current course for which the student is currently enrolled has already been extended (at least once) at the student’s request and is due to finish the final semester in early May 2020. The fact that it is just three months to the conclusion of this course has weighed in favour of the applicant.

6. For the following reasons, the Tribunal has concluded that the decision should be remitted for reconsideration with the direction that the applicant meets the criterion of a genuine temporary entrant to study and stay in Australia.

   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. There are no other applicants.The issue in the present case is the genuine temporary entrant criterion (GTE) 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.

    The applicant’s circumstances in his home country

11. The applicant stated he has never been married and has no dependents (anywhere). His immediate family in his home country comprises his parents, brother and sister in Rajasthan, India. His father owns a pharmacy and a farm. The applicant provided no evidence of the size or other features of these businesses.  His brother manages a hotel.  The applicant has not provided any evidence of his living arrangements in his home country. He does not appear to have any other community ties in India other than his immediate family. The Tribunal has given this consideration minimal weight in the applicant’s favour.

12. In his initial years in India after leaving school he also worked as physiotherapist both as student and for a further 1 year subsequent to graduation. During this period he also worked as a cook to support himself. This financial support was supplemented by his family.

    Movement and immigration history

13. He came to Australia in order to study a Master of Science (1 year) and a Master of Public Health (1 year).

14. The applicant first entered Australia on 17 August 2014. He departed Australia just once on 23 February 2018 and returned one month later on 21 March 2018 and he has not departed since 21 March 2018.

15. Hence, in almost 6 years he only returned to his home country once for one month. The Tribunal give this consideration minimal weight against the applicant.

    The applicant’s circumstances in in Australia

16. At the time of arrival in Australia he was 25. At the time of the Tribunal hearing he was 29/30 years of age. He currently lives in Orange, NSW. He is single and rents a house with another family and is rents a room. In Orange he works in an Indian restaurant as a cook and earns $400-$500 per week. He enrolled for a Certificate IV Commercial Cookery on 22 December 2015 with an institution which was not the registered provider.

17. He then enrolled in Diploma of Hospitality on 25 November 2016 again with an institution which was not a registered provider. His motivation for doing this course was to earn extra money and he had also done this in India to support himself. He disregarded the applicable regulations. He claimed he wanted to be a cook. Subsequently, he was nominated as a cook in connection with a subclass 457 visas.

18. The Tribunal considers this change to cookery of no value to his declared courses of study although its rationality was that he had had experience in India and the main motivation for this course appears to be to earn his way whilst he studied. The Tribunal gives this factor minimal weight against the applicant

    Academic progress

19. At the hearing before the Tribunal the applicant was provided with a copy of the PRISMS record “Provider Registration and International Student Management Systems” dated 13/03/2019. This PRISMS record was further updated on 11/02/2019 prior to the making of this decision.

20. Just as he completed his English language precursor course, he was advised by the education provider that both courses were now each of 2 years duration. So now he had to find funding for 4 years study (overall) in Australia rather than 2 years study (overall). Nevertheless, he decided to pursue at least his first course (Health Science) and attempted (with the assistance of his father) to have his Indian bank extend its loan to cover both 2 year courses (i.e. 4 years of study). The loan application was unsuccessful.

21. After discussion with this father he decided not to pursue his health related courses any further. His father suggested he complete a course which could help expand the family business. He enrolled n a Master of Professional Accounting. He was initially confident that with his science background that he would be able to make satisfactory progress in the Masters of Professional Accounting course. However, this did not prove to be the case. He found the course too difficult. He had to discontinue the Master of Professional Accounting course and turn to a Bachelor of Accounting.

22. After he abandoned his Master of Professional Accounting course he enrolled in English course as he was advised that such a language course was a precursor to a Bachelor of Accounting course.

23. His explanation for not progressing with his studies is that he could not concentrate. He changed his course of study and study pattern and turned to a Bachelor of Accounting without advising the department.

    Accounting

24. In changing course he had not sought any assistance from an education provider. And had not made alternative arrangements to address his difficulties with the department. Instead he changed pathways and obtained a new education provider.

25. It was drawn to the applicant attention that his CoE for Bachelor of Accounting was cancelled (as at the time of hearing on (13/03/2019) but he explained that that was the entry recorded once he extended his course in Bachelor of Accounting and took on a “lesser load“. He claims the education provider agreed it would extend his CoE and that this would “not be a problem”. His migration representative pointed out that each time there was a change the PRISMS record it was recorded as a “cancellation”. This is not the Tribunal’s experience as there are many PRISIM records which are marked “variation” but given the decision of the Tribunal has come to this issue is of marginal importance in this case and is not pursued.

    Value of the course to the applicant

26. The applicant claims that when he will finish his course, then on return to India, he wants to utilise his studies to expand his father’s business and modernise it to run similar to Australian pharmacies. He says that Indian pharmacy shops are limited to filling medicine prescriptions whereas in Australia they sell many other products.

27. There are three trimesters in his Bachelor of Accounting current course. In the Tribunal hearing the applicant declared that the last (third) semester was to run from January to May 2020.  He says that he will finish his study in April 2020 and return to India in May 2020. This, he says, is his main goal. He claimed he had everything in India. All of these claims are marginal persuasion but are overshadowed by the fact that his current CoE is for a course expiring very, very shortly (i.e. May 2020).

    Other relevant matter

    On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets the requirements of cl.500.212 (a) and the Tribunal remits for reconsideration the application with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa - CL.500.212 of Schedule 2 of the Regulations.

28. The Tribunal notes the current course for which the student is currently enrolled has already been extended (at least once) at the student’s request and is due (as already twice stated) to finish its final semester in early May 2020. This application for review is a borderline case (given especially the academic record) but the Tribunal has found in favour of the applicant. The fact that it is just three months to the conclusion of this course that has weighed importantly in favour of granting the application for review notwithstanding that he has himself abandoned courses, made poor progress in other courses and procured the lengthening of his current Bachelor of Accounting course by his own application(s) to the education provider.

29. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

    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 of the Regulations

    Brian Camilleri
    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.