Joshi (Migration)

[2019] AATA 4764

Joshi (Migration) [2019] AATA 4764 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Tinia Joshi
Mr Kirti Sharma
Miss Hiral Sharma

CASE NUMBER:  1810523

HOME AFFAIRS REFERENCE(S):           BCC2018/853278

MEMBER:Peter Booth

DATE:23 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 23 August 2019 at 9:22am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – enrolled in course to secure further student visa – no significant incentive to return to India – use of visa to maintain residence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
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 3 April 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 February 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas 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 was not a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 22 August 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

2. 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?

1. 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 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.

2. 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.

3. The applicant gave evidence at the hearing, the substance of which was as follows.

4. The applicant had read and understands the decision of the delegate refusing her application for a student visa. The applicant arrived in Australia in 2009 as the holder of a Subclass 573 (Student) visa. The applicant informed the Tribunal that she understood this was a Higher Education visa.

5. The applicant confirmed that she arrived in Australia with her husband, the second applicant Mr Sharma. The applicant initially intended to study a Certificate III in Food Processing (Pastry and Baking) and which she completed in May 2010.  Thereafter, the applicant completed a Diploma of Management in April 2011, an Advanced Diploma of Management in June 2012 and a Certificate IV in Hospitality in October 2013. She is currently studying a Diploma of Leadership and Management which she has not yet completed. She informed the Tribunal that she had obtained an extension which will allowed her to complete this course on 15 December 2019. She is enrolled in an Advanced Diploma of Leadership and Management which will be completed in about August 2020.

6. Between 2013 and 2018 the applicant was the holder of a Subclass 457 visa entitling her to work in Australia.  She obtained a job as a cook in a restaurant and did not study during that period. In answer to a question from the Tribunal she said that it was her intention when she completed the Advanced Diploma of Leadership and Management that she will join her parents in her home country and manage the family catering business. She gave evidence that on her return to India, if she is to work in the family business, she expects to earn approximately AU$4,000-AU$5,000 each month.

7. The applicant has returned to India on one occasion since arriving in Australia, namely in 2014 for a period of five weeks. 

8. The applicant has had several visas during her time in Australia as follows. The first student visa valid from February 2009 to 2 April 2011; and a second extended 573 visa valid from April 2012 to June 2012. The applicant explained that she had a bridging visa during 2011 and 2012, as she was pregnant.  Then the applicant obtained a second student visa which was valid until December 2013.

9. The applicant’s immediate family in her home country comprise her father, mother, two sisters and one brother. The applicant has no assets in her home country but said that her parents’ house is valued at approximately AU$60,000-AU$70,000.

10. The applicant gave evidence that she could undertake the Advanced Diploma of Leadership and Management course in India but that courses from Australian institutions are considered more “valuable” in India.  The Tribunal enquired why the applicant needed to undertake the Advanced Diploma of Leadership and Management. The applicant responded that she wanted to help her parents in the business and that her brother and sisters were not interested.

11. In response to an invitation from the Tribunal she described her parents’ catering business as operating the kitchen in two hotels. The first is a 25 room hotel and the second is a 40 room hotel.  Her parents employ about 31 staff between the two hotels. The applicant said that her mother does some cooking and that her father runs the business. The Tribunal enquired why she needed to undertake further study in order to operate a small business such as that conducted by her parents. The applicant said that she wanted to “start confidently”. She said that there were many tourists in the city in which the hotels were located and that she wanted to “operate it properly”. Her parents are currently conducting the business, her mother is 55 years old and a father is 62 years old. She added that her father had been unwell and that he will not be able to operate the business in the future. Further, that he has been asking the applicant to return to India. The Tribunal enquired why, on that basis, the applicant had not returned to India to take over the business. The applicant said that she wanted to complete her studies in Australia and then return to India.

12. The Tribunal invited Mr Sharma, the second applicant to address the Tribunal. Mr Sharma said that he worked as a taxi driver earning about AU$450 each week and that he had not studied while he had been in Australia.  He had completed a Bachelor of Arts degree in India and then worked as a real estate agent in his father’s business.

13. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

14. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with clause 500.212 and the Ministerial Direction No.69.  The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether she has satisfied the genuine temporary entrant criterion.

15. The Tribunal has considered the applicant’s circumstances in her home country.  The applicant is married and is from India.  The applicant has provided evidence of social, direct family and financial ties to her home country or other economic incentives to return. When considering the applicant’s circumstances in her home country, the Tribunal therefore finds that she has been able to demonstrate ties to act as an incentive to return to her home country at the completion of the proposed study.  Since arriving in Australia in 2009, the applicant has returned to India once for a period of five weeks.  However, while the Tribunal accepts that the applicant may have family ties India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

16. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant first arrived in Australia in 2009 as a holder of a 573 visa valid to April 2011.  The proposed study would extend the applicant’s stay until at least January 2021.  The Tribunal finds that the length of this proposed additional stay creates serious concerns that the applicant is studying for the purposes of staying in Australia.  Whilst the tribunal accepts that plans can change, this is not the conduct of a genuine student.  Rather, it suggests the applicant has decided to extend her stay in Australia by utilising the Student Visa Programme.

17. The Tribunal does not place significant weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  The Tribunal has considered the applicant’s study history since arrival.  She has studied courses in cookery, management, hospitality, management and leadership for a period of six years (excluding a four year working period).  She now intends to study leadership and management for a further two years.  This is not the conduct of a genuine temporary entrant.

18. The Tribunal notes that this course plan is inconsistent with her plans when she initially entered Australia.  The applicant now wishes to pursue an Advanced Diploma of Leadership and Management in Australia.  The course is asserted to have relevance to vague future plans.  The Tribunal does not accept that such a course has relevance to a catering business having regard to the applicant’s extensive studies in the past.

19. The Tribunal notes that the applicant worked as a cook in Australia. The Tribunal is not satisfied that the applicant has established that study will provide her with significant benefits in her proposed career plan, considering the cost of the study and the fact that the applicant already has experience as a cook.  The Tribunal is therefore not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to her future beyond the qualifications she already holds.

20. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to India. 

21. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

22. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia in 2009 the applicant has only spent five weeks outside of Australia which indicates that the applicant does not appear to have strong personal ties to India.  Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be minimal.

23. The Tribunal has given regard as to whether there is any other relevant matter.  The Tribunal finds that there are no other relevant matters to consider that may be beneficial or adverse to the applicant, and that this aspect is not relevant.

24. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal.  The applicant was granted a 573 visa which would have facilitated the applicant’s study in the applicant’s desired field.  The applicant has never enrolled in nor completed a higher education course as required by the 573 visa.  It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

25. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

26. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.

27. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

28. The Tribunal has considered all the information provided with the visa application. After weighing up these factors as a whole, the Tribunal finds that the applicant has not been able to satisfy it that the applicant genuinely intends a temporary stay in Australia as a student.

29. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

30. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

SECONDARY APPLICANTS

1. The application of the primary applicant having been unsuccessful, it follows that the applications of the secondary applicants also fail.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Peter Booth
Member