Kaur (Migration)

[2020] AATA 3939

Kaur (Migration) [2020] AATA 3939 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Gurmeet Kaur

CASE NUMBER:  1915418

HOME AFFAIRS REFERENCE(S):          BCC2019/1664065

MEMBER:Noelle Hossen

DATE:23 July 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision of the application for a student (Temporary) visa for reconsideration with the direction that the applicant meets the following criteria for a subclass 500 Student Visa.

. cl 500.212 of schedule 2

Statement made on 23 July 2020 at 7:21pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– economic and family ties to her home country – husband and son in India ­– significant incentive to return home– genuine applicant for entry and stay as a student–decision under review remitted

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 12 June 2019 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 3 April 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.

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).

4. The applicant was assisted in relation to the review by their registered migration agent.

5. The applicant was sent an invitation pursuant to Section 359(2) by the Tribunal to provide further information on the 21 November 2019.

6. On the 4 December 2019 the applicant responded and provided the Tribunal with various documents including the following: Current Certificates of Enrolments, transcript of the course progress, transcripts of previous studies in India and Certificates, Medical documents relating to the traffic accident that her sister was involved in, decision of the delegate of the Minister of home affairs, applicant’s marriage certificate, applicant’s passport, applicant’s health cover, Applicant’s year 10 and 12 certificates, applicant’s overseas work experience and qualifications.

7. The applicant also provided a statement that the Tribunal took into consideration when arriving at the Decision.

8. The applicant decided not to attend the hearing after receiving an invitation to appear at a hearing from the Tribunal.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

11. 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?

12. 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.

13. 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.

14. The applicant was born on the 20 May 1983 and is 37 years of age. She is married and has one son.

15. It is evident from reading the Decision of the Delegate that the applicant and her son were together in Australia on a visitor visa. Her son has returned to live in India and the applicant makes reference in her documents supplied that he returned to India to complete his schooling.

16. The applicant had completed a Bachelor of Arts at the Punjabi University Patiala from April 2003 to September 2006.

17. She did not disclose to the Tribunal her work experience save and except for the work that she did as a teacher in a pre-primary school from July 2016 to January 2019.

18. She disclosed that her annual salary was in the sum of $1920.The annual salary of a teacher in Australia even at Pre-Primary level would be much more than that. There is an obvious disparity in the annual incomes between the 2 countries.

19. The applicant arrived in Australia on a visitor visa as she needed to assist her sister who was involved in a traffic accident after giving birth. The Tribunal has considered the documents filed in respect of her sister’s mental health difficulties following the accident including the photographs of the accident.

20. The Tribunal accepts that one of the reasons that the applicant did come to Australia was to assist her sister. The applicant arrived on the 7 February 2019.She has not returned to her home country since her arrival. Her visa was to cease in May 2019. Her application for a student visa was made in April 2019.

21. The applicant does not set out clearly in her material whether she made the decision to study before she came to Australia. She must have had the intention to do so as her written statements give the impression that she had wanted to study in Australia and she stated in her paperwork that:” there are many top colleges /universities offering hospitality management in India: Oberoi Centre of learning, Delhi Institute of Hotel Management  etc…, but my preference had always been an English speaking country where I could learn better and experience practical skills.”

22. She goes on to state as follows: “I particularly decided to study in Australia as Australia is an advanced nation and has abundant resources. Education system in Australia is much advanced and sophisticated as compared to the Indian system. Once I complete my study in Australia, I will have a bright and better prospect of gaining employment in India. Moreover, having Australian education and work experience would always help an individual to be considered among the pool of shortlisted candidates while securing a job in India or other subcontinents.”

23. The applicant made her application to study in Australia within 2 months of arriving in Australia. She states in her written material that she browsed a few private colleges and was looking for a provider who could offer practical kitchen placements in their own training facility.

24. The fact is that it is a big step to uproot yourself from your family and your work to travel to Australia to study even if it is only until June 2021, after completing her Diploma of Hospitality and management.

25. The applicant has not worked since she arrived in Australia.

26. She has no work experience in hospitality or cooking.

27. She has previously completed a bachelor’s degree at a University in India and is now seeking to study in vocational capacity to achieve a Diploma level course.

28. Her information contained in her written material as to her job prospects in her home country are all generalised and could easily be obtained from various websites.

29. The Tribunal finds it difficult to believe that she merely came to Australia to assist her sister and then decided to change her career path to remain in Australia to study hospitality. She has had no experience in the field prior to arriving in Australia. However the applicant has stuck to the path and has actually attended her course and seems intent on completing the course.

30. There is evidence to suggest that she has a definite plan that will lead to a better financial situation for her family when she has completed the Course.

31. She states that her husband has immovable assets in India to the value of $158,112.

32. Her husband and child have remained in India for the time being. Her parents still live in India. Her son must have returned to India in July 2019.She has a sister who lives in Western Australia as a permanent resident. She has a brother who is in Australia on a student visa.

33. She does not appear to have any siblings in India as her other sister lives in Germany and she has not seen her since 2018.

34. As her sister lives on a permanent basis in Australia that this may serve as a significant incentive for her to wish to remain in Australia although her parents, husband and son remain in India.

35. She says that she speaks to her family every day on the telephone. She says that her son is at school in India and that she speaks to him every day after school. She says that she speaks to her husband on a few occasions a day. She says that they understand her decision to stay in Australia for their better future.

36. She says that she has strong family ties in India. Her husband does not have any parents living and his only family members are herself and her son.

37. She says that she made the decision to let her son return to India as she did not want his studies to suffer and he would have a better life with his father in India. She thought that she would be away for 2 years and that she was planning to visit them over the Christmas break but was unable to do so as she received a letter about the hearing from the AAT.

38. The Tribunal accepts that she does have strong family ties in India that would serve as a significant incentive for her to return to India. She also has economic ties as she has indicated that her husband owns land.

39. She stated that she was socially active in the Sikh temple and that she and her husband would make meals every month for children as part of their contribution to the needy in their community in India.

40. The Tribunal finds that she does have strong family, economic and social ties to her home country and places significant weight on these facts in favour of the applicant’s case. Although she has a sister in Australia it is evident that she has stronger family ties with the members of the family who still reside in India.

41. She is sacrificing her time with her son and husband with the view of learning skills in Australia that may assist the family in providing a better financial situation in the future.

42. The applicant has provided a transcript of her progress at the college and it would appear from the documents that she is attending her classes and has progressed well. She has met the costs of the fees as well. The Tribunal weighs those facts in favour of the applicant’s case.

43. The applicant has complied with the migration laws of other countries.

44. The applicant does not have to do military service and there is no political and civil unrest in her home country.

45. 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).

46. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

47. 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.

    DECISION

48. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Noelle Hossen
    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.