Joshi (Migration)

[2020] AATA 3590

Joshi (Migration) [2020] AATA 3590 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aarohi Joshi

CASE NUMBER:  1934726

DIBP REFERENCE(S):  BCC2016/1123940

MEMBER:Peter Haag

DATE:20 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 20 August 2020 at 4:02pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – genuine temporary entrant – visa, study and work history – length of stay – not enrolled for significant periods – multiple courses in related subjects – value of proposed courses to applicant’s future – incentives to stay or return – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 572.223(1)(a)

CASE

Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16

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 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 15 March 2016. The delegate refused the grant of the visa on 10 August 2018. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant genuinely intended to stay temporarily in Australia.

4. This matter comes before the Tribunal pursuant to Orders made by the Federal Circuit Court of Australia on 27 November 2019, and amended on 4 December 2019, quashing the decision made by the Tribunal on 9 April 2019, and directing the Tribunal to determine the application according to law. It now falls to the Tribunal, differently constituted, to determine the review according to law.

5. The applicant was represented in relation to the review by her registered migration agent.

6. The applicant appeared before the Tribunal on 25 May 2020 to give evidence and present arguments. Without objection, and with the consent of the applicant, the hearing was adjourned part-heard to a date to be fixed to enable the applicant to put forward her best possible case because the Tribunal was concerned the applicant may not have provided to the Tribunal all the documentary evidence that may have been available to her.  Accordingly, the Tribunal informed the applicant and her representative that a s.359(2) request for Student visa information would be sent to the applicant to give her a further opportunity to provide information to the Tribunal, including a complete statement of her study history in Australia, supporting documentation, and any written submissions she may wish to make. The Tribunal informed the applicant and her representative that upon receipt of the applicant’s.359(2) response and any accompanying materials, the Tribunal would relist the matter for further hearing. 

7. The Tribunal received the applicant’s s.359(2) response on 12 June 2020.  In that response, the applicant informed the Tribunal that she consented to the Tribunal deciding the matter without a hearing. No supporting documentation or written submissions accompanied the s.359(2) response. Out of an abundance of caution and concern that the applicant (and her representative) may have failed, somehow, not to appreciate that the review hearing was part-heard, and that she had an existing right to resume the hearing and give further oral evidence before the Tribunal decided the review, the Tribunal wrote to the applicant on 8 July 2020.  In summary, the Tribunal reiterated to the applicant her existing right to give further oral evidence, provide documents and written submissions to the Tribunal, and invited the applicant to expressly declare whether she had abandoned her existing hearing rights.  On 17 July 2020, by email, the applicant’s representative, Mr Bansal, a registered migration agent, stated the applicant “did not want to give further oral evidence”.    Accordingly, and additionally, having regard to the s.359(2) response and information the Tribunal gave the applicant and her representative at the hearing on 25 May 2020, the Tribunal is satisfied the applicant abandoned her right to give further oral evidence; and, her right to present additional documents and written submissions to the Tribunal. Consequently, the Tribunal has determined the review based on the oral evidence given by the applicant to the Tribunal on 25 May 2020 and the information before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

10. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

11. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction 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.

12. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

13. The Tribunal has considered the applicant’s reasons for not undertaking the study in her home country, India or the region. In summary, the applicant doubted her ability to gain admission in equivalent courses provided in India because places in those courses are highly sought-after and difficult to obtain.  Additionally, the applicant reasons that the courses in Australia teach to a high standard in well-equipped facilities, and the course content is more contemporary than the content of equivalent courses in India. Judged objectively, the Tribunal is satisfied the applicant has provided reasonable reasons for not undertaking the study in India or the region.

14. The applicant initially arrived in Australia on 3 August 2008 as the holder of a Student visa, TU-573. The date of the applicant’s current visa application is 15 March 2016. Whilst residing in Australia, the applicant returned to her home country for the purpose of visiting her family  in 2011, 2015, 2016, 2017 and 2019. In each of those years, the applicant stayed in India for periods ranging upwards from 18 days in 2011, to 2 months in 2019. According to the applicant’s s.359(2) response, and in written submissions provided to the Tribunal, the applicant informs the Tribunal that her parents reside in India and her sister resides in New Zealand. The applicant speaks regularly with members of her family. The applicant is close to her parents who own assets in India which the applicant did not specify with any particularity.  The applicant claims she feels it is her moral responsibility to Indian society and her parents to return to India and look after her parents and their assets, whatever those assets may be.  The applicant did not provide evidence of the ages of her parents or compelling evidence of any needs specific to her parents, or their assets, that would serve as a significant incentive to return to India in the foreseeable future.

15. Considering the length of time the applicant has resided in Australia, the Tribunal gives little weight to the applicant’s claim that she has many friends and relatives in India and that her current relationship with them forms a tie to India that amounts to a strong incentive to return to India[1]. This view is strengthened by the evidence that the applicant completed her education in India in December 2007, she then applied for a Student visa and arrived in Australia on 3 August 2008 as the holder of that visa.  Thereafter, the applicant has resided in Australia, studied and been continuously employed by Coles from September 2014 to the present time. On balance, this evidence does not satisfy the Tribunal that the applicant’s personal friendships in India, her relationship with her parents and members of her extended family and her sense of moral responsibly to society in India would serve as a significant incentive to return to India.

    [1] Applicant’s written submissions to the Tribunal

16. In respect of the applicant’s community ties to India, the applicant informed the Tribunal that “I used to participate in religious activities and ceremonies in a temple near my home in India”[2]. This personal tie to India is too remote from the present time to satisfy the Tribunal that it would serve as a significant incentive to return to India.

    [2] S.359(2) response

17. There is no evidence that the applicant has any offer of employment available upon return to India; and the applicant’s s.359(2) response discloses that the applicant was not employed in paid or unpaid work before arriving in Australia. The applicant claims in the s.359(2) response that she owns a residential house in India which she values at $AU200000. This claim is easily made, and without explanation, it is unsubstantiated by reasonable supporting evidence, such as the address of the house , a copy of the certificate of title, or a credible valuation of the house: information that it is reasonable to expect would be readily available to the applicant.  In the absence of reasonable supporting evidence that supports the applicant’s claim that she currently owns a residential house in India valued at $AU200000, the Tribunal finds the claim to be unpersuasive.

18. In considering the totality of the evidence relevant to establishing the extent of the applicant’s personal ties to India, the Tribunal is satisfied her personal ties to India would be an incentive to visit India from time to time, but the Tribunal is not satisfied that the extent of the applicant’s personal ties to India would serve as a significant incentive to return to India.

19. There is no evidence before the Tribunal that satisfactorily establishes the applicant’s current economic circumstances in India. The evidence before the Tribunal is insufficient to allow the Tribunal to satisfactorily determine whether the applicant’s present economic circumstances in India relative to Australia, or at all, would present as significant incentive for the applicant to not return to India. Accordingly, the Tribunal gives this consideration neutral weight in this decision.  

20. There is no evidence of military service commitments that would present as a significant incentive for the applicant to not return to India; and, there is no evidence of civil unrest in India that may induce the applicant to apply for a Student visa as a means of obtaining entry to Australia for the purpose of remaining. The Tribunal gives these considerations neutral weight in this decision.

21. The applicant has established ties with a religious community in Australia and she participates in religious activities, but that is as far as the evidence goes in relation to the applicant’s personal ties to Australia.  The evidence of the applicant’s personal ties to Australia is sparse and is insufficient to allow the Tribunal to satisfactorily determine whether the applicant’s ties with Australia would present as a strong incentive to remain in Australia. Accordingly, the Tribunal gives this this consideration neutral weight in its decision.

22. The length of time the applicant has been residing in Australia satisfies the Tribunal that the applicant has a realistic level of knowledge of living in Australia.

23. The applicant is currently enrolled in the Certificate IV in Project Management and the Diploma of Project Management provided by Central Melbourne Institute (the current package of courses): this study programme started in June 2020 and finishes in December 2021. The Tribunal is satisfied the applicant has a realistic level of knowledge of the contents of the current package of two courses and the associated education provider. Based on the number of courses the applicant has successfully completed in Australian, the Tribunal is satisfied the applicant’s knowledge of her previous courses and the associated education providers meets reasonable expectations and is satisfactory. 

24. The applicant holds a bachelor level degree in Information Technology that she obtained in India in December 2007. In Australia, between 2008 and March 2011, the applicant completed a Master of Information Technology provided by Swinburne University[3]. At Swinburne during the same period, the applicant also completed a Graduate Certificate of Information Technology.  The applicant competed a short course in English for Academic Purposes between May 2011 and 17 June 2011, provided by Melbourne Institute of Technology.

    [3] S.359(2) response

25. Subsequently, the applicant undertook a series of courses provided by an education provider know by the acronym AVETA. According to the applicant’s s.359(2) response, and in written submissions before the Tribunal, the applicant’s study history at AVETA comprised of the following courses: Certificate IV in Business completed between June 2012 and December 2012; Diploma of Management completed between December 2012 and June 2013;  Advanced Diploma of Business completed between July 2013 and January 2014. The applicant then regressed in her level of study and completed a Diploma of Business between April 2015 and June 2015; an Advanced Diploma of Business between July 2015 and January 2016; and, the applicant claims she completed a Certificate IV in Frontline Management but she did not provide the start date or end date of that course in accordance with the request for information made of the applicant in the s.359(2) document. The Tribunal will return to the Certificate IV in Frontline Management later in this decision.

26. The applicant completed five courses focused on business and business management at an academic level that is likely to be equivalent to the level of study, and subject matter of the current package of enterprise management courses. The applicant has not demonstrated to the Tribunal by any objective measure, just how the current package of courses will add to the combined educative value of the courses she has already completed in Australia. For example, the applicant did not put before the Tribunal any comparison of the subjects provided in the current package of courses to the subjects completed in the courses that comprise her current level of education.  Considering the apparent similarities between many of the courses comprising the applicant’s current level of education, and in the absence of evidence that objectively demonstrates how the current package of course adds significant value to the subject matter of her current level of education, the Tribunal is not persuaded that the current package of courses will add significant value to the applicant’s current level of education, or that it is significantly relevant to, or likely to assist the applicant to a significant degree, to obtain employment or improve her prospects of future employment in India or a third country.  

27. In submissions about the focus of the current package of courses , the applicant has used phrases such as “focusing on the industrial needs of the region”; “fosters inter-disciplinary teamwork, scholarly development, cooperation with regional industry and management ethics”; “education in project management and leadership combines with the managerial aspects that are professionally focused and practice-oriented”; and, “focusing on industrial needs”. These are general statements that are easily made, unsupported by reasonable evidence of the actual subject content of the courses; and, the Tribunal finds the remarks, and remarks of a similar character made in the information the applicant put before the Tribunal, and there are a number of them, to be  vague and unconvincing. If anything, the statements demonstrate a likelihood of a significant overlap between the current package of courses, and the business and management courses already completed by the applicant, and detract from the applicant’s claim that the current package of courses, combined with her current education, will assist her to a significant degree to obtain employment or improve her prospects of employment in India.

28. The applicant contends that her “ultimate goal is to secure a job in high level administrative roles in reputed IT firms in India”[4] and that her qualifications will support her goals and give her an advantage over other candidates of such employment.  The applicant has not supported her claims as to the relevance and value of the current package of courses to her employment goal with objective evidence.  The applicant’s claims are vague generalities easily made; they are unsubstantiated by supporting evidence such as detailed evidence of inquiries made with “reputed IT firms in India”, capable of objectively evidencing that the current package of courses will assist the applicant to obtain employment, or significantly improve her prospects of employment at such IT firms.  Moreover, the applicant did not even go so far as to provide the names of the “reputed IT firms” she refers to in her submissions.

    [4] S.359(2) response

29. Considered as a whole, the evidence and information before the Tribunal does not satisfy the Tribunal that the current package of courses is materially relevant to the applicant’s proposed future employment, or that it will significantly assist the applicant to obtain employment or improve her prospects of employment in India.

1. The applicant claims her education will result in her being paid approximately INR80,000 per month and that it will increase with experience. This is a generalisation, easily made; it is unsupported by objective evidence, and the Tribunal finds it to be unpersuasive. The evidence related to remuneration lacks enough detail to enable the Tribunal to satisfactorily establish the approximate remuneration the applicant could expect to receive anywhere using the qualifications to be gained from the proposed course of study. 

2. In considering the totality of the evidence and the considerations in Ministerial Direction No.53, the Tribunal is satisfied the considerations prescribed in cl.13, cl.14a.i, cl.14a.ii, cl.14bi and cl.14bii of the Direction are immaterial to the application for the Student visa, and more specifically, the issue of whether the applicant genuinely intends to stay temporarily in Australia. Accordingly, the Tribunal is satisfied that the Direction No.53 considerations specified in this paragraph are immaterial to the Tribunal’s ultimate decision in this review: see Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16. However, to the foregoing conclusion, the Tribunal makes an exception which derives from the applicant’s study history. The evidence relevant to the applicant’s study history indicates the applicant was not enrolled for significant periods, and that she failed to make reasonable academic progress for significant periods, whilst claiming to be residing in Australian primarily for the purpose of fulfilling genuine study. The Tribunal will examine this issue in the following paragraphs.

3. Considering the amount of time spent by the applicant in Australia and the applicant’s study history in Australia, the Tribunal is satisfied the Student visa has been used primarily for maintaining ongoing residence. According to the applicant’s s.359(2) response, between June 2011 and June 2012, the applicant was not participating in a course of study, for a period of about one year. Furthermore, the course that started in June 2012 was the Certificate IV in Business, but the applicant’s Confirmation of Enrolment (CoE) document relevant to that course was not created until 28 May 2012.Given the applicant’s previous course of study ended in June 2011, it is evident the applicant was not enrolled and studying for many months in 2011/2012.

4. According to the applicant’s s.359(2) response, between January 2014 and April 2015, the applicant was not participating in a course of study, for a period of more than one year. April 2015 was the start date of the Diploma of Business. The CoE provided by the applicant for the Diploma of Business starting in April 2015 was created on 31 January 2015. Considering the course that preceded the Diploma of Business was an Advanced Diploma of Business which ended in January 2014, it is evident the applicant was unenrolled and not studying for a significant period in 2014/2015.

5. According to the applicant’s written submissions provided to the Tribunal immediately before the hearing, the applicant claimed she had completed a Certificate IV in Frontline Management, a course the applicant claims she undertook upon completion of an Advanced Diploma of Management in January 2016. The applicant did not provide evidence of the start date or finish date of the Frontline Management course, nor did she provide a CoE for the course, or evidence of her participation in the course such as an academic transcript of her results. This is a matter of concern to the Tribunal, and the Tribunal raised its concerns with the applicant during the hearing. The applicant apologised for the omission of the start and finish dates of the course and said that she could provide the Tribunal with a CoE for the course.  Part of the reason for the adjournment of the hearing was to give the applicant an opportunity to provide additional documents including the CoE for the course in Frontline Management.  In the applicant’s s.359(2) response, provided to the Tribunal after the hearing, the applicant again provided details of her study history in Australia; while she referred to the same Certificate IV in Frontline Management, and claimed that she had completed the course, again, she did not provide the start date or the finish date of the course, nor did she provide a CoE for the course, the very document the applicant said at hearing that she was able to provide. This was not provided to the Tribunal, despite being provided with a second opportunity to do so. Additionally, the applicant provided no documentary evidence that verified that she participated in and completed the course. The Tribunal doubts the veracity of the applicant’s claim that she completed the Certificate IV in Frontline Management.

6. During the hearing the Tribunal reminded the applicant that she provided to the Department two CoEs: one CoE declared the applicant to be enrolled in a Diploma of Leadership and Management starting April 2018 and ending 31 March 2019; the second CoE declared the applicant to be enrolled in an Advanced Diploma of Leadership and Management starting 1 April 2019 and ending 29 March 2020. The Tribunal informed the applicant that her prehearing submissions which contained details of her Australian education history did not mention either of these courses. When asked about the pre-hearing omission of these two courses from the study history, an omission repeated in the applicant’s post-hearings.359(2) response, the applicant informed the Tribunal that she decided not to proceed with those courses. The evidence satisfies the Tribunal that the applicant intentionally omitted any reference to these two courses from her Australian education history, and also the start date and end date of the Certificate IV in Frontline Management, because to do so risked demonstrating to the Tribunal that between January 2016, and May 2020, the date the applicant enrolled in the current package of courses, the applicant had completely disengaged from study in Australia, thereby providing direct evidence to the Tribunal that the Student visa may be used primarily for maintaining ongoing residence, and that the Student visa program is being used to circumvent the intentions of the migration program. The Tribunal is satisfied that the applicant’s evidence in relation to her Australian study history, and more generally her claim to be a genuine temporary entrant is unreliable. Furthermore, the Tribunal is not satisfied the applicant is enrolled in the current package of courses for a genuine study purpose, but that it is likely her current enrolments are primarily for the purpose of using the Student visa for maintaining ongoing residence; and, to use the Student visa program to circumvent the intentions of the migration program.

7. There is no evidence that establishes the applicant travelled to any countries other than Australia and failed to comply with the migration laws of those countries. Therefore, the Tribunal is satisfied this aspect of the applicant’s immigration history is immaterial to the application, the Tribunal’s decision and reasons for decision: Kumar.

8. After considering the totality of the evidence before the Tribunal, the Tribunal is satisfied it has given regard to all the available information relevant to assessing the applicant’s intention to stay temporarily in Australia, and that there is no other information provided by the applicant that is relevant to the issue that has not been considered by the Tribunal.

9. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).  

10. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of the Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet the criterion for the grant of a Student visa, it must affirm the decision under review.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Peter Haag
    Member