Kaur (Migration)

Kaur (Migration) [2020] AATA 4341 (18 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Harpal Kaur
CASE NUMBER:  1930708
HOME AFFAIRS REFERENCE(S):          BCC2019/4506800
MEMBER:Dominic Triaca
DATE:18 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 18 August 2020 at 3:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – lower level proposed courses than previous achievements - value of courses to the applicant’s career prospects – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 September 2019. 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.
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 applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate‘s decision was provided to the tribunal with the applicants review application.
The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicant to provide further information to the Tribunal on 1 June 2020. The invitation advised that, if the information was not provided in writing by the prescribed period, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicant‘s nominated address, being the address provided by the review applicants in connection with this application for review.
On 12 June 2020 the applicant requested an extension of time to respond to the Tribunal. On 15 June 2020 the Tribunal granted an extension of time until 6 July 2020. The applicant responded to the Tribunal in writing on that date (359 Response) and provided further documentation in response. The applicant consented to the Tribunal determining the application without a hearing.
In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.
It is appropriate to highlight that a decision maker is not required to make the applicant‘s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.
In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
The issues in this application arise in the following circumstances. The applicant is a 23 year old citizen of India. She arrived in Australia on a tourist visa on 17 July 2019. On 9 September 2019 she applied for a student visa proposing to study a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management at Lennox College (proposed study). The proposed study is due to conclude in January 2022.
On 17 October 2019 the delegate of the Department refused her application (delegate’s decision). On 29 October 2019 the applicant applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.
The Tribunal has read and had regard to documents provided by the applicant to the Department and Tribunal including the delegate’s decision; Application for a student visa 9 September 2019; GTE Statement and updated GTE Statement filed with 359 Response; 359 Response to Tribunal’s questions; Financial information including bank account balance from HDFC Bank and Affidavit of Financial Support from applicant’s Mother; Statement of Enrolment Lennox College 12 June 2020; Bachelor of Commerce Guru Nanak Dev University and Transcript; Confirmation of Enrolment Documents; Passport; Certificate of Overseas Student Health Cover.
The Tribunal has considered all the evidence. It accepts much of the applicant’s evidence in support of the application. It is not controversial that (a) she arrived in Australia on a tourist visa; (b) At the time of her enrolment she held a Bachelor of Commerce from her home country; (c) she subsequently enrolled in the proposed study; (d) she has thus far applied herself to her studies and has progressed in the Diploma course. This much is clear from her evidence and the statement of Lennox College and the Tribunal regards her application to her studies as a matter in her favour.
However, the following matters weigh heavily against granting the application.
First, the applicant’s Bachelor Degree from her home university is at a higher level than the proposed study. The Tribunal does not accept that there is any real benefit to the applicant to study at a lower level Diploma course. It seems to the Tribunal that she is well placed to return home and find suitable employment on the strength of her degree without needing to complete a vocational level course in Australia. The Bachelor Degree is designed to assist the student meet disparate business challenges. It is not apparent to the Tribunal how the proposed studies will improve the applicant’s employment prospects in her home country or help her to obtain employment. It follows that the Tribunal does not consider that the proposed study is likely to increase her remuneration upon her return home.
Second, the applicant’s evidence in relation to her future plans is vague and unconvincing. She says that she wants to establish herself as an educator ‘where I can value creativity and for business concept that can be highly marketable in the education industry and focus on the aim of making education available for everyone regardless of race, gender or caste.’ She appears to be hoping to establish herself as an entrepreneur in the education industry in India and start her own institute. Elsewhere in her GTE Statement she says she hopes to open a ‘chain of institutions’. She also states that she aspires to “build a world where gender equality is a far cry and women navigate their path through their actions rather than words.” It is simply unclear to the Tribunal how the proposed study is likely to assist her in achieving her goals. The Tribunal does not accept that the Diploma and Advanced Diploma of Leadership courses will leave the applicants better placed to open an Institute in India.
The Tribunal does not consider the proposed study is consistent with the applicant’s level of education.
It is unclear to the Tribunal how the applicant’s previous employment as an accounts teacher relates to her chosen studies.
In these circumstances, the Tribunal does not consider the proposed study offers any real value to the applicant’s future career.
The applicant appears to have a reasonable understanding of her private education provider and her proposed course, although she has been unable to demonstrate how the proposed course relates to her future employment prospects to the Tribunal’s satisfaction. She appears to have minimal understanding of living in Australia.
The applicant’s family is stated to be her Mother living in India and her Brother resident in Australia. She has not returned to India since first arriving in Australia. She has no dependents in India. She says she speaks to her family via whatsapp three to four times per week. The Tribunal takes into account that the applicant says she will be responsible for looking after her mother in old age. There is no evidence to indicate this is likely to occur in the near, or medium term future. The Tribunal does not consider that the mere presence of the applicant’s mother in India constitutes a significant incentive for her to return home.
The Tribunal does not consider that there is specific evidence that the applicant has ties to Australia that operate as a strong incentive for her to remain here. The Tribunal notes the presence of the applicant’s elder brother in Australia but there is insufficient evidence to conclude that his presence is likely to operate as such an incentive.
There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.
The applicant states, and the Tribunal accepts, she has no concerns in relation to potential military service commitments in her home country.
The applicant states, and the Tribunal accepts, she has no concerns in relation to political or civil unrest in her home country.
The evidence in relation to the applicant’s economic circumstances is as follows. She worked in India as an Accounts Teacher. She is financially supported by her Mother and provided evidence of an affidavit of financial support. There is no evidence she has any assets in either Australia or India. There is no evidence she works in Australia. The applicant states her annual expenses in Australia are approximately $15,360 per annum. In the circumstances, it does not appear to the Tribunal that the applicant’s economic circumstances operate as either a significant incentive to return home or to remain in Australia. It is a neutral factor on the application.
The applicant appears to have complied with the conditions of her visas since arriving in Australia. She travelled to Australia in 2019 without issue. She has not disclosed any concerning travel history and the Tribunal makes no adverse findings against her in relation to her travel and immigration history.
The Tribunal notes that the applicant did apply for a student visa whilst onshore on a tourist visa in 2019. This is permitted under the regulations and is not adverse to the application.
There do not appear to be any other matters relevant to the application.
The Tribunal has considered all the evidence of the applicant. The Tribunal is not satisfied that the applicant is a genuine applicant. This is largely due to the applicant’s failure to demonstrate that the proposed study has any real value to her future career path. Her failure to do so is twofold. First, she has not explained how the proposed study will improve her prospects of employment noting that she seems well placed to find suitable employment on the strength of her Bachelor of Commerce. Secondly, she has not sufficiently explained her future goals to enable the Tribunal to assess how the proposed study will assist her in meeting those goals upon her return home. In circumstances in which the proposed study does not appear to offer any real value to her future, the Tribunal is concerned that the purpose of the applicant’s student visa application is to enable her to maintain an ongoing residence in Australia.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
D Triaca
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.

[2020] AATA 4341

18 August 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention