Kaur (Migration)

[2020] AATA 5676

Kaur (Migration) [2020] AATA 5676 (29 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simranjit Kaur
Mr Jaspreet Singh
Master Joban Singh Jagpal

CASE NUMBER:  1910824

HOME AFFAIRS REFERENCE(S):          BCC2019/1096523

MEMBER:Peter Booth

DATE:29 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 29 September 2020 at 1:18pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant for study– applicant is currently enrolled –applicant has been studying– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
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 17 April 2019 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 5 March 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 applicant was not a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 28 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

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

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

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 17 April 2019 refusing an application for a student visa. The applicant understood that the issue for determination was whether she was a genuine temporary entrant.

12. The applicant said that she is currently enrolled in several courses of study, a certificate III in commercial cookery which commenced on 22 July 2019 and was scheduled to be completed on 19 July 2020, a certificate  IV in commercial cookery which was scheduled to be commenced on 20 July 2020 and to be completed on 17 January 2021 and a diploma of hospitality management which was scheduled to be commenced on 18 January 2021 and to be completed on 18 July 2021. The applicant had produced a confirmation of enrolment document to the Tribunal in relation to each course. However the applicant said that her current course, the certificate III had not been completed but would be completed in two or three weeks and that she was still attending the course. The commencement date of the other courses apparently has not altered.

13. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359 (2). The applicant confirmed that she did not want to add to or vary this document. In summary the information provided by the applicant was as follows.

14. The applicant was born on 4 January 1994 in India. Prior to arriving in Australia she completed a bachelor of arts degree between June 2011 and June 2014. She did not disclose any employment history prior to arriving in Australia.

15. The applicant arrived in Australia on 28 December 2018 and since that time has not returned to her home country.

16. The application for the student visa in question was made in March 2019. The applicant stated that the only visa she has held was a “visitor visa” granted in “12/2019” and which ceased in “12/2019”. Presumably the former date is erroneous.

17. The applicant stated her study history in Australia is as follows. She enrolled in a “general English – elementary, intermediate and advanced” in February 2019 but did not complete it, she is currently studying the certificate III in commercial cookery and has future enrolments as described above. As to whether she could undertake these courses in India she stated that she did research on similar qualifications offered in India, considering the pros and cons and finally decided to complete the course from the selected education provider and from within Australia. Most of the available courses in India are run by private businesses with no set curriculum. Even the subjects offered are not listed on the websites and they do not give enough information. There is no regulating authority or industry standards. Also none of these courses are available in her hometown. So, if she was to study and stay away from her hometown, then why not study in a developed country such as Australia. Her education agent made her realise that the quality of education in cookery and hospitality courses here in Australia are world renowned and streamlined as compared to India. The education system back in India is more theory based whereas in Australia, the colleges use a hands-on, more applied practical approach. As well, the method of assessment in India is mostly examination based whereas in Australia the education system focuses on various methods like assignments, group work, essays, examinations, etc. which would help her build both her theoretical and practical knowledge. Studying in Australia will also give her a global exposure to meeting people of various cultures which in turn would help her improve her communication and networking skills. Also, Melbourne has been ranked as one of the most liveable cities in the world and is famous for its restaurants and multicultural community.

18. The applicant did not disclose any employment history in Australia. The applicant stated that her mother resides in India and that her husband, son and brother reside in Australia.

19. The applicant stated that she had assets in India comprising “family Frams (sic) and house etc” the value of which she estimated to be AU$1 million. As to her future employment plans the applicant stated: she and her husband want the applicant to look for a job in a high class, trendy restaurant for a couple of years in India and then start their own restaurant. They believe applicant’s studies in Australia will help them in achieving all this.

20. As to her expected future remuneration she stated: Around $20,000 per year which is not bad as per Indian standards for a new employee who has graduated in Australiain the cookery and hospitality field.

21. The Tribunal proceeded to ask the applicant some questions arising from the information paraphrased above. When asked whether she had been employed in India before arriving in Australia she said “No, I worked in my field, that I helped my mother, I was supervising work on the farm.”

22. The applicant confirmed that she arrived in Australia on 28 December 2018 as the holder of a “tourist visa”. She confirmed that the visa was valid for three months in respect of that entry and it expired in respect of that entry on 28 March 2019.

23. When asked as to her intentions in travelling to Australia she said “my brother’s son’s birth in Australia 2019, I came to attend”. Work when asked how long she intended to stay in Australia she said “15 – 20 days.”

24. When asked when she applied to be enrolled in a course of study she said “5 March 2019.” the Tribunal observed that she had applied for the student visa on 5 March 2019. She was asked whether she applied for the visa on the same day that she applied to be enrolled in courses. She said “In February”. When asked as to the course she intended to study when first applying she said “General English course”. The Tribunal observed that she did not complete that course which she said “I chose the course because I thought my English was not good, I studied for six months.” She did not elaborate. When asked when she had ceased studying that course she replied “15 July 2019.”

25. When asked as to her employment history in Australia she said “I do not work.”

26. When asked whether she had any assets in India in her own name she said “No.”

27. The applicant was invited to add anything further to her application for review to which she responded “I am a genuine student, I plan to leave Australia when the courses completed, I’ve never broken the rules, I want to start my business in India.”

28. The applicant’s representative declined an invitation to make any submissions to the Tribunal.

29. The applicant also provided documents to the Tribunal in addition to those referred to above as follows. A certificate of completion of a “general English pre-intermediate” course, a statement of attainment in respect of the certificate III in commercial cookery, a statement of completion in respect of a general English pre-intermediate course, and a letter dated 27 July 2020 from a course provider confirming that the applicant “is enrolled as a full-time student at the technical Institute of Victoria” but does not identify the course in which she is enrolled. The applicant did not refer to these documents during the course of giving evidence at the hearing. Nonetheless the Tribunal has taken the documents into account and given them appropriate weight.

30. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant arrived in Australia on 28 December 2018 as the holder of a tourist visa intending to stay for between 15 and 20 days. The purpose of the visit was to attend her nephew’s birthday party. Apparently shortly prior to the expiry of the three-month validity of the visa the applicant applied to enrol in a general English course. Thereafter, the applicant decided to stay in Australia with her family to study various cookery and hospitality courses which would require her to reside in Australia until at least July 2021. The applicant gave no evidence as to when she decided to apply for these courses of longer duration. The applicant has not returned to India since arriving on 28 December 2018. The applicant abandoned the general English course on 15 July 2019. The applicant gave vague evidence about the utility of these courses to her future employment plans. However, in the applicant’s favour, she has almost completed the first vocational course in commercial cookery, the next two courses appear to be of a similar character rather than a change in study level from higher education to vocational courses and to courses completely unrelated to the original study plan. Further the applicant considers that she will complete this course of study within a relatively short period of time. The Tribunal notes that this course is due to finish in July 2020 and that the applicant is currently studying. It remains to be seen whether she does complete his course in July 2020, a matter about which there may be some reasonable doubt.

31. The applicant arrived in Australia as a tourist. She quickly changed her mind and decided to become a student. Whilst the applicant is entitled to do so, the circumstances of arriving in Australia and then the change in intention is relevant to assessing whether an applicant is a genuine temporary entrant. However, on balance, and not without significant misgivings the Tribunal considers it appropriate to give the benefit of the doubt to the applicant.

32. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

33. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

34. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

35. The application for review by the primary applicant having been successful, it follows that the application of the secondary applicant must also succeed.

    DECISION

36. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.500.212 of Schedule 2 to the Regulations.

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.