Kader (Migration)

[2022] AATA 4838

Kader (Migration) [2022] AATA 4838 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shahena Bee Kader

Mrs Shahena Bee Kader
Miss Inaaya Siddiqah Kader
Mr Mohammad Eerfan Siddicki Kader

REPRESENTATIVE:  Mr Mohammad A Z Maudarbocus (MARN: 1279645)

CASE NUMBER:  2205380

HOME AFFAIRS REFERENCE(S):          BCC2019/2329528

MEMBER:Penelope Hunter

DATE:25 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 25 October 2022 at 8:15am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–– applicant had spent a considerable amount of time in Australia – applicant was not a genuine applicant for entry and stay as a student – applicant had not clearly demonstrated the value of the course to her future– genuine temporary entrant criterion not met– decision under review affirmed

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 3 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 April 2019. 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 delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

4. The Tribunal received the application for review from the applicants on 12 July 2019. The applicants appeared at a hearing before the Tribunal on 16 July 2020, and on 28 July 2020 the decision to refuse the visa was affirmed.

5. The applicants appealed the decision to the Federal Circuit and Family Court of Australia, and on 28 February 2022, the matter was remitted to the Tribunal for reconsideration.

6. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CLAIMS AND EVIDENCE

7. The applicant is a 32-year-old citizen of Mauritius, she arrived in Australia on a student visa on 6 February 2013. She originally applied for the visa in order to undertake a study in a Diploma of Social Media Marketing concluding in February 2020. The applicant is married. The second named applicant, Mr Mohammad Eerfan Siddicki Kader, is her husband and the third named visa applicant, Miss Inaaya Siddiqah Kader, is their daughter. Her husband and daughter are seeking to satisfy only the secondary visa criteria and have applied for the visas on the basis of being a member of the applicant’s family unit.

8. In support of her visa application, the applicant provided the department with copies of her identity documents and those of the other applicants and the following:

   i.Identity and marriage documents for the applicant and second named visa applicant. Identity documents for the third named visa applicant and a copy of her Western Australian birth certificate.

   ii.Confirmation of Enrolment (CoE) in a Diploma of Social Media Marketing, at Keystone College, with course dates from 10 June 2019 to 16 February 2020, created on 29 April 2019.

   iii.Evidence of the applicant’s study in Mauritius and the award of Diploma in Foundation in Travel and Tourism issued to the applicant in March 2012.

   iv.Evidence of study undertaken by the applicant in Australia including Certificates of Completion of English language courses between 11 February 2013 to 6 December 2013, Certificate III in Community Services Work, completed 8 August 2014,Certificate IV in Community Services Work completed 4 December 2014, Certificate III in Early Childhood Education and Care dated 14 September 2017, a Diploma of Early Childhood Education and Care, dated 21 November 2018 and a Certificate of completion of General English 2, issued 7 April 2019.

   v.Evidence of Overseas Student Health Insurance.

   vi.PTE Academic Test taker score report, test date 21 November 2018, Overall score 26.

9. In her visa application the applicant also set out the following information in relation to the genuine temporary entry criteria (in summary):

   i.She had completed her Certificate III and Diploma in Early Childhood in November 2018, then she studied some English to improve her communication skills. On the advice of her family she had decided to do a further course that will be helpful.

   ii.She intends to return to her family in Mauritius and open a childcare centre. Her husband will join her family in their wholesale business. She only needed to get some local experience to understand the system in her home country and the government requirements for the industry. Once she has a good grasp of knowledge she intends to set up her own business.

   iii.Advertising today is all on social media and to stand out in the fierce competition in the market, good preparation is important and advertising a dominant factor.

   iv.Her course was of short duration, only nine months, it was only provided at Keystone College Perth and she had enjoyed her previous studies there. She knew the place, including the safety and multicultural factor, the climate and proximity to Mauritius with two direct flights per week.

10. The delegate in their decision record, a copy of which the applicant has provided to the Tribunal, set out the following reasons for the refusal of the visa:

    i.The delegate had concerns about the applicant’s incentive to return to her home country on the completion of her studies given the presence in Australia of her husband and child.

    ii.It was considered that the applicant was unable to demonstrate sufficient economic ties to her home country.

    iii.The applicant had spent a considerable amount of time in Australia, arriving on 6 February 2013 and if the visa was granted would stay until at least 6 February 2020. The applicant had not resided in her home country for any significant time since her initial date of entry having spent 2247days in Australia and 27 days out of Australia.

    iv.It was considered that the applicant had not clearly demonstrated the value of the course to her future and any career prospects. Whilst the delegate acknowledged the applicant’s statement that she intends to open a childcare centre upon return to Mauritius, the delegate was not satisfied this was sufficient as the applicant had not provided any business plans or convincing testimony as to how her Australian study would assist in these plans.

    Tribunal application

11. The Tribunal received an application for review from the applicant on 11 July 2019.   

12. In response to a request from the Tribunal on 21 November 2019, for information pursuant to s 359(2) of the Act the applicant provided a completed Student Visa Information form. In the form, received on 5 December 2019, the applicant disclosed that she had returned to Mauritius for 25 days in July 2019. She was continuing to study the Diploma of Social Media and Marketing which was due for completion in February 2020. After completing this course she planed to complete a Business Management course, at least a Diploma and Advanced Diploma to enable her to successfully run a business in the future.

13. On 13 July 2020, the representative of the applicants submitted the following additional documents:

    i.Statement of the applicant.

    ii.Representative’s submissions.

    iii.A CoE in a Diploma of Business with course dates from 20 April 2020 to 16 October 2020, at Skilled Services Australia, created on 11 February 2020.

    iv.A CoE in an Advanced Diploma of Business with course dates from 16 November 2020 to 12 November 2021, at Skilled Services Australia, created on 28 May 2020.

    v.A CoE in a Diploma of Project Management, at Skilled Services Australia, with course dates from 10 January 2022 to 6 January 2023, created on 11 February 2020.

    vi.Course progress statement issued by Skills Institute Australia, confirming the applicant’s enrolment and course standing.

    vii.A bank statement from the Mauritius Commercial Bank in the applicant’s name indicating a balance of 365,347.79 Mauritius Rupee as at 30 June 2020.

    viii.The sponsors letter of Mr Sahezad Hoosseny, bank statement, Mauritius national ID card, Certificate of Company Incorporation, particular of company at incorporation, and business registration card.

    ix.Country information from the Heritage Foundation concerning economic freedom in Mauritius.

    x.An Air Mauritius flight itinerary from Perth to Mauritius return.

    xi.Various photographs of the applicant with family members:

    xii.Certificate of completion of the Diploma of Social Media Marketing issued on 16 March 2020.

14. In her statement the applicant said:

    i.She previous undertook a foundation course in tourism as her parents wanted to open a travel agency for her.

    ii.She wanted to do something else. Social work interested her because she was motivated to help others. As part of her course requirements she got work experienced working with children with disabilities in 2014.

    iii.After completing the course she realised that she could use the knowledge she had gained on a voluntary basis but that she needed to work for a living. When she considered community services in Mauritius she though that it would be hard for her to make a living.

    iv.Having her own daughter sparked her interest in childcare and she would like to have her own business in the future. Her father agreed to support her organising a location and buying land for her to build a proper building to start.

    v.As the childcare education sector in Mauritius is highly complex her father has encouraged her to realise that she needed the strategic planning, organising and implementation skills required to successfully establish her project. Especially as there will be a lot of compliance issued with relevant authorities. Completing studies in business and project management would help with this goal.

    vi.Many families in Mauritius chose to send their children to high end childcare centres. She was targeting high class clients. She planned to set up her business in the district of Flacq where there will be little or no competition. She wanted to add more facilities which may not be provided by the other centres, such as early morning care, after school care and a special program for children with disabilities which is not offered by any private childcare centres in Mauritius. She intended to develop this program and because I have qualifications in Community Services work

    vii.Many graduates from Australia are easily getting jobs in Mauritius, and Australian qualifications are highly regarded. The applicant claimed that childcare was a lucrative business in Mauritius. She wanted to study business and project management courses to enable her to understand running a business efficiently and effectively. She had given careful consideration and researched the area before she chose her course. She intended to be thoroughly involved in her business, from inception to managing and running it effectively. Her courses would enable her to project and manage risks involved, costs management, quality of services provided and lead and manage team effectiveness.

    viii.It was the best time for her to study while her daughter was still young. When she returned home her daughter would be in school full time and this would allow her focus on acquiring local experience and doing research to enter the industry as an entrepreneur.

15. In the representative’s submissions dated July 2020 the following information was provided:

    i.The applicant had completed her Diploma of Social Media Marketing and was currently studying towards a Diploma of Business.

    ii.It was unfair to consider the applicant’s spouse and child as an incentive for her to remain in Australia and this was contrary to the intentions of the Act and Regulations in ensuring that members of a family unit are kept together. Instead it should be considered as a strong incentive for the applicant to complete her studies.

    iii.The applicant had strong family ties in Mauritius. As the eldest son the second named applicant was to look after his parents in their old age. The applicant had funds in her name in Mauritius and being the only daughter she would inherit 50% of her parent’s properties. Her father intends to purchase a block of land for the applicant to build a day-care facility. She would have the full support and financial backing of her father, who is an experienced business owner

    iv.Mauritius was a world leader of the sub-Saharan African region. It was a safe and beautiful island, which was stable with strong economic opportunities. It is a multicultural island with no discrimination and offered free education and medical services to its citizens.

    v.It was premature to expect a business plan from the applicant as she was stull in Australia. As a starting point she needed to speak to various relevant authorities in Mauritius, and this information is not readily available online.

16. On 29 August 2022, the applicant was invited to attend a hearing before the Tribunal on 22 September 2022. This hearing was postponed due to public holiday announcement, and the applicant then invited to attend a hearing on 4 October 2022.

17. On 3 October 2022, the representative for the applicant sent to the Tribunal submissions on behalf of the applicant including the following documents:

    i.Certificate of Completion of the Diploma of Business, awarded 10 November 2014, and academic transcript.

    ii.Western Australian birth certificate of the applicant’s second child Aayat Marayam Kader, born 6 August 2021.

    iii.CoE in a Diploma of Project Management at Keystone College, created on 28 September 2022, with course dates from 3 October 2021 to 2 April 2023.

    iv.CoE in an Advanced Diploma of Business, at Keystone College with course dates from 17 April 2023 to 14 April 2024, created on 28 September 2022, with course dates from 17 April 2023 to 14 April 2024.

    v.Pay advice for the applicant, week ending 28 September 2022.

    vi.Sponsorship letter from the applicant’s father.

    vii.Translated sale deed.

18. In their submissions the representative for the applicant set out the following additional information (in summary):

    i.The applicant completed her Diploma of Business in November 2020.

    ii.The applicant found out she was pregnant with her second child in December 2020. She could not study because she was sick during her pregnancy and required bed rest. Her second child was born on 6 August 2021.

    iii.It was difficult for the applicant to leave the baby as there were so many COVID cases in the community. There were many Delta variant cases in the community and it was hard for the applicant to go out and risk her newborn babies health. At the start of 2022 the number of cases increased due to the opening of borders in March 2022, since they there had been thousands of COVID 19 cases due to the influx of international travellers. However, eventually the omicron variant was less severe compared to Delta and it slowly became the norm in WA.

    iv.As of November 2020, her father purchased 1027.5 square meters of land in Mauritius for the applicant to operate a childcare centre.

    v.The applicant is working in an afterschool care business in various government schools. She is acquiring experienced to ensure that her childcare centre will provide the complete package.

    vi.The applicant’s family are only in Australia due to her dedication to her studies.

    vii.The fact that the applicant is already in Australia makes it easier for her to acquire her qualifications here rather than her home country.

19. The applicant and second named visa applicant appeared before the Tribunal, via MS Teams video on 4 October 2022, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was assisted in relation to the review by their registered migration agent, who also participated in the Tribunal hearing.

20. Following the hearing, on 14 October 2022, the applicant submitted further statutory declarations of herself and the second named visa applicant. The Tribunal was also provided with a copy of a Visitor visa grant notice for Bibi Ameneenah Kader issued on 28 February 2020. In her statutory declaration the applicant sought to address claimed mistakes in evidence she provided at hearing on the basis that she was nervous. The applicant addressed her relationship with her family and her parents’ investment in her studies. The applicant claimed that her intention was to stay temporarily in Australia. She further added to her evidence at hearing regarding her difficulties with two young children and concerns that impacted on her studies during the COVID-19 pandemic. The second named visa applicant set out details of his support for the applicant, and his concerns for his mother who had suffered a fall on 11 October 2022. The applicant and second named applicant requested that the Tribunal proceed to a decision in the matter.

21. On 21 October 2022, the representative for the applicant provided to email submission to the Tribunal that applicant’s mother-in-law, Mrs Bibi Ameneenah Kader had passed away.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. 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 satisfies cl 500.212 of Schedule 2 to the Regulations.

23. 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?

24. 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.

1. 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.

2. With respect to the applicant’s circumstances in her home country, it is accepted that both the applicant, and the second named applicant, have close family ties. It is also accepted that these ties would provide some incentive for them to return to their home country. The Tribunal has had regard to the evidence that the applicant has returned to Mauritius in the past to visit her family, and that family members have visited her in Australia. It is also noted that the second named applicant recently returned to spend time with his family, and that they have found it difficult to be away from family in circumstances of illness. The applicant has some savings in Mauritius, although it is noted that this is a moveable asset. The Tribunal further accepts that the applicant’s father has financial resources to potentially assist them in the future and that he has obtained land which could potentially act as a site for a future childcare business for the applicant. The second-named applicant may also have an opportunity to work in his father-in-law’s spice business, although he has not formally done so in the past. There is no evidence of any economic circumstances that would present a significant incentive for the applicant not to return to her home country. It is claimed that as the eldest son, the second named visa applicant, has a cultural obligation to support his parents in their old age. The Tribunal must balance the impact of this obligation against the fact that his two younger adult brothers are working and remain living with his parents in his home country.

3. It is also accepted that the applicant does not have any military service commitments and she claimed to have no fears about returning to Mauritius. It is accepted that Mauritius is a safe island and there were no incidents of civil or political unrest in her home country that would induce her to apply for a student visa. Overall, the Tribunal accepts that these particular circumstances of the applicant in her home country are factors which are favourable to the visa grant.

4. The Tribunal has also considered that when the applicant applied for the visa under review she represented that she was seeking to undertake what she claimed was a final nine month course in Social Media Marketing before her proposed return in February 2020 to her home country to start her career and build her business. It is accepted that the applicant has successfully completed these studies and other studies in Australia, although this is the general expectation of student visa applicants seeking to remain in Australia for the purposes of study. It is of concern for the Tribunal that the applicant had proposed, and is still proposing further courses, that will see her remain in Australia now until at least April 2024, an additional four years.

5. The Tribunal is also not satisfied that the applicant has reasonable reasons for not undertaking the desired qualifications in her home country. The applicant told the Tribunal at the hearing that it would be beneficial and she would prefer to study in Australia. Yet the Tribunal also notes that the applicant has claimed that she needs to be able to plan her business around compliance issues and regulatory requirements in her home country. She further claims that before she opens her childcare centre she requires experience in the Mauritian childcare environment to understand the relevant regulatory requirements for childcare centres in her home country. The Tribunal considered that the qualifications in her home country would more relevantly address regulatory requirements in her home country, and the identified gaps in the applicant’s business planning. The Tribunal has also considered the applicant’s claims about the value of Australian and overseas qualifications in general, yet the Tribunal is aware that the applicant already holds several Australian qualifications, which would add value to her resume and any employment applications.

6. Also of concern for the Tribunal is the recent gap in the applicant’s studies. According to the CoE submitted that applicant’s Diploma of Business was completed on 16 October 2020. She did not proceed with her previous enrolments in the Advanced Diploma of Business and Diploma of Project Management. She is now only resuming studies the day before the Tribunal hearing on 3 October 2022. The applicant has provided various reasons for this delay, firstly she has claimed that she had experienced illness during her pregnancy, yet as identified to the applicant at the hearing, there is no medical evidence to support this claim, and in particular, to demonstrate that she was unable to undertake any study for the entire period of her pregnancy. The applicant also raised with the Tribunal that prior to the birth of her second daughter it was difficult for her to study with a toddler at home. The Tribunal notes that she had successfully studied her Diploma of Business while undertaking her caring responsibility for the third named visa applicant and she also had the support of the second named applicant. The applicant has further submitted that she had concerns about COVID, and the Tribunal accepts that the applicant would have been concerned about the health of her family during the pandemic. Yet it notes the relative isolation of WA during the pandemic and actual incidence of the virus. The applicant also confirmed that there was an opportunity available for online study, and that she had successfully undertaken some of her Diploma of Business online. Overall, the Tribunal has considered the various explanations offered by the applicant, her evidence at hearing and pre and post hearing submissions. The Tribunal has allowed for the claimed nervousness of the applicant at the hearing. The Tribunal has carefully considered the various reasons offered by the applicant and in combination it is accepted that these reason could explain some break in her study, even an extended period of over a year. What is of concern for the Tribunal is that it was for a period of approximately two years.

7. The third named visa applicant returned to school early in 2022, applicant’s appeal was successfully remitted from the Federal Court in February 2022, the second-named applicant claimed to be working less than 20 hours per week and WA had been open for several months by the time of the Tribunal hearing. Even allowing for the stated concern about variants of COVID-19, the Tribunal also takes note of the fact that the applicant only obtained her current enrolments after she had been invited to a Tribunal hearing. The Tribunal does not accept her explanation that she thought now the time was right and continues to hold genuine concerns that she has returned to study for the purposes of satisfying the visa requirement and remaining in Australia rather than a genuine interest in the proposed qualification.

8. As to the applicant’s circumstances in Australia, with her immediate family together with her it is considered that her ties onshore are strong. While it is accepted that there is no evidence that she has any other family in Australia, the Tribunal does not accept that the submission of the applicant’s representative that the presence of her husband and children in Australia should not considered. It is a relevant consideration under Direction 69. The applicant’s two children have been born in Australia. The third named visa applicant has now commenced school in Australia, yet it is noted that the applicant had previously made claims that she wished to complete her studies while this daughter was young so that when she started school in Mauritius the applicant could build her career. For the last five years the applicant and her family have rented the same residence in Perth. The second named visa applicant is working part-time in accordance with his visa conditions as a bus driver. Not all applicants seeking to stay in Australia temporarily are accompanied by their family, some chose to have them remain in their home country so they can concentrate on studies. In the applicant’s circumstances she has claimed her family responsibilities and lack of support in Australia have impacted on her ability to study. Despite these claimed obstacles the applicant is still proposing further years of study in Australia.

9. It is accepted that due to the fact that she has been present in Australia since 2013, the applicant has reasonable living arrangements. As to her knowledge of her proposed course, the applicant failed to demonstrate this satisfactorily to the Tribunal. In her written submissions the applicant referred to a need for strategic planning, organising and implementation skills due to relevant planning and compliance issues in Mauritius. The applicant did not address any of these factors in her evidence at Tribunal or post-hearing submissions. In her evidence at hearing she made only generalised statements about wanting to complete her studies, and that business would be very helpful. The applicant spoke about her previous studies and building a social media profile, yet she has continues to have no business to profile. She talked about plans to develop an App to allow parents to log in to view up to date information about their child in care, yet the Tribunal was not satisfied her current courses were necessary for the development of this program in the future, or that they would provide the applicant with the necessary skills to develop this software. It was noted that the applicant had altered the order in which she would undertake her proposed study in the advanced diploma of business and project management, which was claimed to be due to the current for course availability. However, the applicant had no specific details to provide the Tribunal as to the relevant subjects or units of the course that she would be undertaking and the outcomes she expects to achieve. The Tribunal is not satisfied that this could be explained by the applicant’s claimed nervousness at hearing.  As the applicant had already spent several years of study in Australia it is expected that she would be able to provide reasonable and detailed reason as to the benefits of further study, although she wishes to direct planning, regulatory and compliance issues in the future, it is not apparent on her evidence that she has undertaken reasonable enquiries as to what these might be and how her proposed studies will assist. Overwhelmingly her evidence is that she will rely on the assistance and guidance of her father.

10. It is because of the stated reliance on the skills and business experience of the applicant’s father, that the Tribunal is also not persuaded that the applicant has demonstrated that she has an intention to personally manage this project. The applicant had relied on her father to obtain the relevant land, she also told the Tribunal that he would advise and facilitate necessary approvals. The only specific project that the applicant provided evidence to the Tribunal she wished to manage was again the creation of her childcare App. While this idea may build upon the applicant’s Social Media Marketing skills, she did not demonstrate to the satisfaction of the Tribunal why a Diploma of Project Management was necessary for this element of her business plan. As to her further business studies, the applicant told the Tribunal that qualifications in business would be very helpful in the future and she comes from a strong business family. It is accepted that her father operates a business with her uncle. However, the evidence of the applicant is that her father and uncle do not hold any relevant business qualifications. The applicant has not demonstrated that another qualification in business would assist her to obtain employment or improve her employment prospects in her home country. There is also no claim or evidence to suggest that future family support for the applicant’s business plans are in any way dependent upon her obtaining her proposed qualifications. The applicant did not demonstrate to the satisfaction of the Tribunal the relevance of her proposed courses to her proposed future employment.

11. The applicant has transitioned in the director of her educational studies from travel and tourism to early childhood education, to community services, to business and then project management. The applicant has argued that they are all connected to her desire to operate a childcare business in the future. The Tribunal considers the claimed links in her various fields of study are tenuous, and particularly with respect to her current proposed study, it is not persuaded that she has reasonable reasons for the constant change in discipline. The applicant could only provide generalised examples of the value of her particular studies for her future. Although the applicant has grand plans, other than the land obtained by her father there have been little practical steps taken to demonstrate that a childcare business is her genuine career path. As the applicant is proposing what is now over a decade of study for this career goal it is not unreasonable to expect that she would have a basic business plan, yet this is all dependent on future discussions with her father. The applicant may claim that she wishes to cater for disabled children, before school care and after school care, and a high end market in her business in the future, but it is difficult to give these claims much weight when the applicant is yet to have a basic business plan for such a business. On her evidence at hearing, she still is unsure of the size of the business and how many children she would seek to cater for. Although the applicant claims to be setting up in a rural area there is no evidence of enquiries for demand for the extensive business she proposes to establish. Further, the land appears to have been acquired without regard to the proposed size of the business or any approvals for building and establishment of a childcare centre. In these circumstances it is questionable how much weight can be attributed to the claimed reasons for acquisition. While the applicant may claim that her country has a strong economic outlook, and childcare was a lucrative business in Mauritius there was little to demonstrate the viability, or actual planning for the complete package that she claimed would be her future business, or to satisfactorily demonstrate to the Tribunal that in the particular circumstance this was her genuine career intention.

12. Also of concern for the Tribunal is the fact that since she applied for the visa under review the applicant has completed two diplomas. She is now seeking to undertake a third and then the advanced diploma relating to her earlier business course. Considering that prior to the application for this visa the applicant already held four Vocational Education and Training (VET) level qualifications including another diploma the Tribunal also had genuine concerns that the applicant was continually enrolling in short inexpensive courses at a similar level for the purposes of extending her time onshore.

13. On her evidence the applicant’s plans for her future childcare business are in their infancy. Any actual establishment of such a business remains several years in the future. Perhaps ten years the applicant has told the Tribunal at hearing. The applicant acknowledged in her evidence and submissions that what she would first require is relevant experience in the childcare industry, importantly in the regulatory environment in her home country. The applicant has not demonstrated in her employment to date a particular engagement in the field of childcare, or the workforce in general. Until recently, other than her work experience as part of the studies, she has extremely limited relevant employment. In post hearing submissions the applicant has claimed that she now wishes to obtain relevant experience in Australia and weight should be attributed to her employment in afterschool care and her contribution to the Australian economy. It is noted that the applicant obtained this employment subsequent to the invitation to the Tribunal hearing, and she has provided evidence of 8.5 hours of employment. Given the previous lack of engagement childcare industry, or any paid employment, and the applicant’s claimed concerns about COVID-19, there are concerns that this casual work was obtained mainly for the purposes of assisting the application under review, rather than her commitment to her business ideals. Overall, it is considered that a stronger educational foundation of further vocational studies is of limited value at the expense of actual experience in the desired regulatory environment in her home country. Once more the Tribunal is not persuaded as to the value of the applicant’s proposed studies to her future career or remuneration.

14. There is no evidence that the applicant has previously not complied with her visa in Australia or overseas, or that she has had a visa that was cancelled or considered for cancellation in Australia or overseas.

15. The Tribunal is concerned about the length of time that the applicant has already spent onshore obtaining VET level studies. The applicant has just started her Diploma of Project Management, this will not be completed until 2023. Then the applicant will undertake the Advanced Diploma of Business due for completion in 2014. She is now proposing a further two years of study which will extend her time onshore to over 11 years. This is not considered a temporary stay. In circumstances where such courses appear to add little short or medium term benefit to her future career and business plans. It is of concern that throughout the period in which the visa has been under review the applicant has repeatedly sought to extend her time onshore.

16. As to other matters, the applicant discussed at the hearing her concerns regarding previous findings when the matter was before the first Tribunal, that she had not proceeded with studies in Accounting. She was aware that information about these studies came from her Provider Registration and International Student Management System (PRISM) records. The Tribunal has a copy of those PRISM records before it and accepts the evidence of the applicant that information contained on the records regarding these studies is in error. The Tribunal has had no regard and places no reliance on this information in the PRISMS record. All other information contained in the record is consistent with the evidence presented by the applicant regarding her study history and the Tribunal draws no adverse inference from this material.

17. The Tribunal also has regard to the post hearing submissions of the applicant and second named visa applicant regarding their separation from their family and the difficulties this has posed. The Tribunal accepts that while awaiting review the applicant and second named visa applicant have lost valuable time to spend with family members, and that the review process has taken a toll on them as a family. The Tribunal has also considered the claims that the second named visa applicant is contributing to the Australian economy through his part-time employment, yet this is not the purpose of a student visa. Ultimately, the concerns of the Tribunal remain similar to those originally set out by the delegate with respect to the value of the applicant’s course, the length of time that she has spent in Australia and her circumstances in Australia. 

18. While noting that the applicant’s circumstances in her home country are favourable to the visa and that she has completed previous courses in Australia, the Tribunal is not satisfied considering all of the circumstances that the applicant has satisfied cl 500.212. Of greater concern for the Tribunal is the value of the applicant’s courses, her lack of demonstrated knowledge in her program of study, her circumstances in Australia, the circumstances of recent enrolment and the length of time that she has spent and proposes to spend in Australia obtaining similar level VET qualifications. Based on what is evidenced of the applicant’s circumstances overall, and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that she intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

1. 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.

2. 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.

3. The second and third named visa applicants have sought the visa on the basis of being a member of the family unit of the applicant who would satisfy the primary criteria for the visa, and in light of the findings above that the applicant does not satisfy the one of the primary visa criteria, the Tribunal also affirms the decision to refuse their visa applications. There is no evidence before the Tribunal that the second and third named visa applicants would otherwise themselves satisfy the primary criteria for the visa.

   DECISION

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

   Penelope Hunter
   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;

   d.whether 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.