Kamalpreet Kaur (Migration)

[2019] AATA 1157

Kamalpreet Kaur (Migration) [2019] AATA 1157 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms  Kamalpreet Kaur

CASE NUMBER:  1715521

HOME AFFAIRS REFERENCE(S):           BCC2017/1004772

MEMBER:Stephen Conwell

DATE:7 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 January 2019 at 2:18pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – using student visa program to maintain ongoing residence in Australia – does not genuinely intend to stay in Australia temporarily – lack of evidence of academic progress –maintained enrolment in short courses – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily (GTE criterion).

4. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refer to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 13 August 2018 the applicant was invited under s.359(2) of the Act to provide information about her proposed course of study and her entry to stay in Australia as a student. The invitation was sent to the applicant’s migration agent (‘representative’) at the last address provided in connection with the review, advising that, if the information was not provided in writing by 27 August 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 25 August 2018 the applicant emailed her response to the 359(2) questionnaire, with an accompanying Statement in support of her application. In her response the applicant consented to the Tribunal deciding her review without a hearing - Question 2. Accordingly the Tribunal will determine the review application “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 intends genuinely to stay in Australia temporarily.

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

9. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future.

    ·The applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries.

    ·If the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant. and

    ·Any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

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

12. The Tribunal has reviewed the delegate’s decision of 30 June 2017 which was provided by the applicant with her application for merits review. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

13. The delegate’s decision in summary notes:

    ·The applicant was granted a student visa on 17 October 2008 and again on 26 August 2015 to study in the Higher Education sector. However the applicant has not completed any courses above the vocational and education training (VET) sector and has maintained enrolment in short/inexpensive courses in the VET sector.

    ·The delegate found that her enrolments in the VET sector indicates that the applicant was using the Student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

    ·The course the applicant is seeking to undertake would require them to remain onshore until at least 15 March 2020; this would bring the applicant’s total time in Australia on temporary visas or associated bridging visas to be over 11 and a half years.

    ·The delegate found it difficult to reconcile the applicant’s extensive proposed stay onshore with her claim that she is a genuine temporary resident. Rather, the significant period of time the applicant has spent in Australia since her initial arrival and the lack of regular departure suggests the applicant’s potential circumstances in Australia outweigh any incentive she has to depart.

    ·The applicant enrolled in the proposed courses shortly before applying for this visa on 10 March 2017.  The delegate therefore found that it appears that the applicant had recommenced studies for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.

    ·The applicant had previously completed courses in hairdressing salon management, laboratory techniques, laboratory technology and business. This latest application is based on enrolment to undertake Certificate III in Information, Digital Media and Technology, Certificate IV in Information Technology Networking and Diploma of Information Technology Networking. The delegate notes that this is in a field of study unrelated to her previous studies.

    ·Despite the explanations provided by the applicant, the delegate was not convinced as to the value of proposed course of study to the applicant’s future.

    ·The applicant first arrived in Australia on 10 November 2008. Despite being in Australia for over 11 and a half years, the applicant has spent only 83 days offshore.  The length of time spent in Australia, brings into question their intention to return to their home country to apply their knowledge and skills there.

    ·The last student visa the applicant held was subject to visa condition 8202 which requires the visa holder to remain in a registered course and also maintain satisfactory course progress in her course for each study period as required by their education provider. The applicant was granted that visa to undertake a Bachelor of Business (Accounting) which is in the higher education sector.

    ·Based on the information in the Provider Registration and International Student Management System (PRISMS) the applicant  were reported for unsatisfactory course progress for the study period of 30 November 2015 and 14 October 2016 by her education provider and her COE cancelled on 3 February 2017. The delegate therefore had concerns regarding the applicant complying with visa conditions if granted a student visa.

    ·After weighing up these factors as a whole, the delegate not satisfied that the applicant intends genuinely to stay temporarily in Australia.

14. The Tribunal has reviewed the delegate’s decision which was provided by the applicant along with her application for merits review. This decision is not binding on the Tribunal; the Tribunal brings an independent view to the review application.

15. The Tribunal has regard to the applicant’s completed 359(2) questionnaire and supporting Statement. The applicant has not provided a satisfactory explanation for her desire to remain in Australia to pursue further study in Australia. The Tribunal not satisfied that her proposed course of study will add value to her stated career or remuneration prospects.

16. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to her home country and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

17. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, he appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily.

18. Overall, given lack of evidence of academic progress, her study history, her immigration history, and the lack of value of the courses to her future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs.  The Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.

19. On the basis of the above, and having considered any 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.500.212(a).

    Conclusion on cl.500.212

20. 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.

21. 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.

    DECISION

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

    Stephen Conwell
    Member