Kaur (Migration)

Kaur (Migration) [2019] AATA 6913 (1 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Nath Mandeep Kaur
Mr Sukhraj Bir Singh
Master Mansimran Bir Singh.

CASE NUMBER:  1701238
HOME AFFAIRS REFERENCE(S):          BCC2016/3084489
MEMBER:Genevieve Cleary
DATE:1 December 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decisions not to grant the applicants Ms Nath Mandeep Kaur and Mr Sukhraj Bir Singh Student (Temporary) (Class TU) visas.
The Tribunal does not have jurisdiction in relation to Mansimran Bir Singh.

Statement made on 01 December 2019 at 11:02pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – mother’s illness and applicant’s adjustment to living and studying in Australia – withdrawal from course, interstate move and enrolment at same level – withdrawal from second course and enrolment at lower level in different subject area – value of courses to applicant’s future – vague and inconsistent evidence – husband’s and applicant’s consistent work in Australia – husband member of family unit, son not included in visa application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212
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 Immigration and Border Protection on 10 January 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 September 2016. 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.
It is noted that the applicants listed in their application for review their son, Mansimran Bir Singh. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that the application for a Student visa filed by the primary applicant on 16 September 2016 did not include as an applicant the applicants’ son, Mansimran Bir Singh, and the Department did not make a decision in relation to him.
As there is no reviewable decision in relation to Mansimran Bir Singh it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter in relation to him.
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, based on the following, she is not a genuine student seeking to progress academically, and was therefore not a genuine temporary entrant for study and stay in Australia.
The primary applicant appeared before the Tribunal on 24 June 2019 to give evidence and present arguments.
The applicants were assisted in relation to the review by their registered migration agent.
Prior to the hearing, the applicants provided to the Tribunal:
·The Decision Record of the delegate;
·Statements of completion and attendance from Cambridge International College;
·A course progress tracking record dated 24 October 2018;
·A letter to the Tribunal dated 21 May 2019 from the primary applicant;
·Submissions in the form of a letter filed by the applicants’ registered migration agent dated 22 May 2019;
·Statements of attendance and transcript from the University of Western Sydney, and
·A confirmation of enrolment for a bachelor of Business, to be completed in June 2020 at Southern Cross University.
After the hearing the applicant supplied to the Tribunal:
·A confirmation of deposit document from 2016, an undated affidavit signed by the applicant’s mother in law attesting to her support of the applicant, a copy of a bank deposit and a copy of the mother in law’s passport;
·Medical certificates and reports dated 2014 and 2015 in the name of Kulwant Kaur, who the Tribunal accepts is the mother of the applicant;
·A medical Report from a cardiologist from 2016 in the name of the applicant.
The Tribunal has also had regard to the Department file.
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. The issue in the present case is a genuine temporary entrant for stay and study as a student.
In addition to giving evidence orally at the Tribunal, the applicant provided other statements to the Tribunal: a statement in the form of a letter from her agent dated 22 May 2019 and a statement in the form of a letter addressed to the Tribunal dated 21 May 2019 from the applicant. As is stated above, the Tribunal has also had regard to the Department file and in particular, the GTE statement provided at the time of the application for the student Visa, the refusal of which is currently under this review. Each of these documents provides inconsistent information and information which is inconsistent with the evidence given at the hearing. The Tribunal has set out in these reasons those inconsistencies and the consequences of those inconsistencies.
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 applicant’s circumstances in her home country

Prior to coming to Australia that applicant had completed a Bachelor of Business at the University of Mumbai. The applicant found it difficult to obtain employment upon leaving university. In her letter to the Tribunal of 21 May 2019 the applicant said that she felt this was because her goals were to develop and manage a business, rather than to apply pure skills such as accounting.
The applicant has a brother who runs a small restaurant in India, and her mother and father are still alive. The applicant was married before she came to Australia. Her husband has a land holding, which he shares with his brother, his father having died. Her father has a business as an exporter and importer, driving a truck. The applicant explained that he had a small business transporting cement.
The applicant told the Tribunal at the hearing that when the applicant came to Australia her mother was ill. She had high blood pressure and the family were told that she should not be stressed. Despite her condition her mother encouraged her to come to Australia to study. When the applicant came to Australia she was married and her husband came to Australia with her.
The applicant’s mother does not know her case is being reviewed. She knows she did not complete the MBA, in which she was enrolled when she first came to Australia. She asked the applicant’s husband, and he told her she had not finished. Once her mother found that out, she wanted her to come home. The applicant convinced her mother that the current courses would assist her to assist with the family business, and her mother accepted that. The applicant also feels that her father has hidden her mother’s situation from her to protect her.
The Tribunal is satisfied that the applicant has some family ties in India such that she has some incentive to return. The Tribunal gives this factor a little weight in her favour.
The applicant is not subject to national service and there is no political or civil unrest or economic reasons that would be cause for the applicant not to return to India, or provide an incentive for her not to return, and the Tribunal gives these factors some weight in her favour.

The applicant’s course of study and her reasons for coming to Australia

The applicant arrived in Australia in 2014. The applicant told the Tribunal at the hearing that she came to Australia for better opportunities and a higher standard of education. The Tribunal accepts that the attainment of an Australian education, particularly at a masters degree level is a reasonable motive to study in Australia and the Tribunal gives this factor some weight in her favour.
She was enrolled in a Masters of Business Administration at the University of Western Sydney. At the hearing she told the Tribunal that her aim when she came to Australia was to complete the course and return to assist her father in her father’s business. She said she believed that the Masters course would assist her to assist her father in that business. She was hoping to complete the course and return home in July 2016. She completed 3 units in the first semester, and failed one. At the hearing of this matter the applicant told the Tribunal that before she left India she knew that her mother had some health problems such as high blood pressure. She told the Tribunal at the hearing that it was during the first semester at the University of Western Sydney that she found out that her mother was even more ill than when she left. She felt alone, having no friends in Sydney, and struggled with the study and the worry about her mother.
Therefore, from the information given orally at the hearing, the applicant knew of her mother’s health problems when she was in Sydney, and her worry over them affected her study.
In the letter from her agent dated 22 May 2019 the applicant told the Tribunal that due to the illness of her mother “and the subsequent time taken to provide support for her she was not able to manage the academic rigour of the Masters degree.” Further, that letter says that she herself became ill and was stressed to the point where she could not focus on her studies and she therefore withdrew from the masters of business administration course. The Tribunal has not been provided with any medical certificates which attest to the applicant being so ill that she could not complete her course or any information which shows that she spent time providing support to her mother from Australia. The Tribunal has received a medical report about the applicant, but this is dated 2016, so well after she left Sydney and the MBA course. While the Tribunal heard from the applicant at the hearing that she was worried about her mother and that this caused her to be distracted from her studies, it did not appear at the hearing that the applicant was asserting that it was her own illness, whatever that may have been, that caused her to cease studying, or that it was her mother’s illness alone which was the cause.
Contrary to her agent’s letter, in her letter to the Tribunal of 21 May 2019 the applicant says that she failed the semester because she had difficulty finding suitable accommodation and she was in a different society having to learn everything from scratch. In that letter she said that it was those factors that impacted on her studies and she failed all of her units; there is no mention of her or her mother’s illnesses as being the cause of her failure. This also contradicts the information the applicant gave the Tribunal at the hearing about the impact of her mother’s illness on her at the time of her being in Sydney. The Tribunal does accept that the applicant would have been worried about her mother if she knew while she was in Sydney that her mother was so ill. However, as explained below, there is contrary information from the applicant about whether she did know of that illness, or at least the seriousness of the illness, when she was in Sydney and the Tribunal can give little weight to the applicant’s evidence that she had such knowledge and that it caused her to cease studying in Sydney.
After the first semester in Sydney, she went to a counsellor at the university. They seemed to think that she would be OK. However, the applicant felt this was not the case. She spoke to a friend in Perth, who encouraged her to visit her. Once the applicant arrived in Perth in December 2014, the applicant’s friend encouraged her to stay and study here, which the applicant thought would be a good idea, as she would be supported by her. She sought and was granted a release letter from the University of Western Sydney. When the applicant moved to Perth she had not been working, but her husband was. While her husband came to Australia with her, he returned to India in October 2014. He came back to Australia in December 2014 and met her in Perth. The applicant had already brought all that she brought to Australia to Perth, so there was no need for her to return to New South Wales. She did not own any furniture or other household effects, and there were no problems with her breaking a lease.
She enrolled in a Master of Commerce at Curtin University, however she told the Tribunal at the hearing that she was worried that with the stress of her mother’s illness she would not complete this course. This would mean that she would have another failure on her record and would have spent a large amount of money in doing so. As a result, she went to an agent to ask for advice.
In the letter to the Tribunal dated 21 May 2019, the applicant said that it was when she reached Perth and commenced the Masters at Curtin University that she found out that her mother had fallen ill. This is contrary to what she told the Tribunal at the hearing and what her agent said in the letter dated 22 May 2019.
At the hearing, the applicant told the Tribunal that she went to an agent and explained that she wished to assist her father, and was eager to complete a Masters level course. At the hearing the applicant told the Tribunal that the agent suggested she commence a commercial cookery course. She then thought that she could perhaps open a business to assist her mother instead, or that the commercial cookery course would nevertheless lead to a Bachelors degree in business, which would in turn enable her to assist her father. At no time in the hearing did the applicant speak of opening her own restaurant, or working in a hotel, and otherwise spoke only of assisting her father in his business, which is not a restaurant, and her brother, on a part time business, in his restaurant.
The applicant asked the agent about what the Department would think if she dropped the course level from that in which she had originally enrolled, and whether she should contact the Department. The agent he said he would take care of it.
In her letter to the Tribunal of 21 May, she said that it was at the point of realising that she may not make it through the course at Curtin University that she decided to “reshape her educational and employment profile.” How she was to do this is discussed further below, however, in summary, the letter says she decided that “I would start up my own restaurant once I returned back to my home country.”
The applicant said at the hearing that she researched where she should do the masters course, but she also considered in her research what she could do to better her future and assist in her father’s business. The applicant could not name any specific sights she went to do perform her research, but said that she had used ‘Google’ and Facebook. She saw that hospitality gave her that opportunity. She also asked her friend here in Perth to help her in that research and she went to a lot of other agents for advice. The Tribunal is satisfied that the applicant completed some research and had some prior knowledge of the courses she undertook and gives that a little weight in her favour.
The Tribunal asked the applicant at the hearing what experience she had had of cooking. She said that she had assisted her mother to cook before she came to Australia, and once her mother became ill she cooked for the family. The Tribunal is not satisfied that this is any experience over and above any one else who cares for a family, and does not depict a ‘life-long hobby.’ Again, in contrast, in her letter to the Tribunal dated 21 May 2019 the applicant said that she decided at this point to turn her “long-term hobby of cooking” into her career, and that she had decided then to pursue a career in the hospitality industry as it was a growing industry and industry that would always provide employment as people have to eat. Further, in the letter she has told the Tribunal that she would start up her own restaurant once she returned back to her home. The applicant did not talk about cooking being a long term hobby at the Tribunal hearing, just that she had had experience in it. In addition, at the hearing the applicant was clear about working for her father and merely assisting her brother in his small restaurant for a small amount of time. This could not be said therefore to be a career, and not opening her own restaurant, or making her career in the industry. The applicant gave no explanation to the Tribunal at the hearing as to why there were such differences in her letter and evidence.
In any event, at the hearing the applicant told the Tribunal that her cooking with her mother gave her an interest in cooking, and she wanted to be able to cook various types of food from different regions of India. Learning here would mean she would learn to cook western cuisine as well. She agreed that it was, ultimately, her idea, rather than the agent’s, to go into cooking. The applicant said that this would still assist her father; once she finished her cookery courses she would be able to complete a Bachelor of Business, as she is doing now. After she has finished her bachelors course she would work for him. She felt that most of the units in the Bachelor course were also in the Masters course. She named units such as accounting and business law which would be helpful to assisting her father, without her having to do the Masters level course.

When asked at the hearing what her intentions were, she said that she will go home and help her father. She was pressed on what it meant to help him, and she said that her father had plans to expand, and needed an accountant in the business to assist him to expand. In relation to the cooking courses, she said that she will assist her brother in his small restaurant. She has spoken to her brother about this, and he is happy to have her assist him in expanding the business to global cuisine. Again, none of this involves opening her own restaurant, or being employed by a hotel or restaurant, or making her career in the hospitality industry.
Her parents live in Mumbai, but their business is in a small town. The business transports cement to other small cities. They want to open in the big city which would enable them to transport items to other states. The applicant said that it was estimated that the profit earnt by the business is $50,000 per year, and that would be shared with her; she estimated she would receive half of the profit. If she partners with her brother, she said she would be concentrating on her father’s business, and therefore only be part time with her brother. She anticipated working 4 days with her father and 2 with her brother. She would update his menus, teach him western cuisine, updating his finances and accounting systems or source ingredients.
The Tribunal is not satisfied that this is a realistic proposition as to the applicant’s potential in India. It was not clear to the Tribunal, and there was no evidence of, why the applicant would receive half of the business’ profits or whether this was the subject of a confirmed business plan with her father. In addition, the applicant did not explain what differences there would be to her share of any profit if she was full time at her father’s business or only part time as she had proposed. She did not provide information to the Tribunal about prospective compensation from her brother in assisting him in his enterprise and she did not provide the Tribunal with financial information for the businesses, or any indication from her father that he agreed with the proposal or how it was to be implemented. As a result the Tribunal is not satisfied that the applicant has provided sufficient information to show a comparison between the applicant’s potential circumstances in Australia and those in India. Without that ability to make a comparison, the Tribunal cannot make any findings on whether there is incentive for the applicant to return home over and above an economic incentive to remain in Australia. Therefore, although the Tribunal accepts that the applicant has family who run businesses that she may work in, putting aside for a moment her other stated desire to open a restaurant, no weight can be placed on those opportunities in favour of the applicant; it is not clear what her goals are, or that they provide any incentive for her to return to India.
Further, given that the plans the applicant has in relation to working with her father and brother, or wanting to be employed in the hospitality industry or open her own restaurant are vague, limited, and inconsistent, the Tribunal is not satisfied that the applicant has shown that she needs to complete any of the courses she has completed, or is now completing, to achieve her career goals. The Tribunal is not satisfied that the applicant has any incentive to return to India over and above the fact that she has her parents there. These factors weigh against her being in Australia to study to increase her opportunities for her career and future, and add weight to a finding that she is using the student Visa program to maintain ongoing residence in Australia.

The applicant’s circumstances in Australia

The applicant lives in a share house in Perth with her husband and others. Her husband currently works as a security officer. When he first came to Australia he was a pizza delivery driver.
The applicant has declared earnings of $26,000 at the restaurant she had been working in since 2017. Her husband has worked in both Sydney and in Perth and is currently a security officer. She now works in an aged care facility. While the cost of living differs between Australia and India, the Tribunal is not satisfied that it can give any weight to her potential earning capacity in India as compared to her potential earning capacity in Australia as being an incentive to return to India to work. The information the applicant has provided the Tribunal is her evidence that she would split the profit of her father’s business with him. As discussed above, the Tribunal can place no weight on that proposition or figure. The Tribunal is not satisfied that the applicant does not have incentive to stay in Australia, and this adds weight to a finding that the applicant is using the Student visa regime to maintain ongoing residence in Australia.
There is no evidence that the applicant has entered into a relationship of concern, and the Tribunal gives this limited weight in her favour.
In the applicant’s response to the request for student Visa information pursuant to section 359(2) the applicant told the Tribunal that her son and brother-in-law are in Australia in addition to her husband. The applicant therefore has ties to the Australian community in that it appears that not only are her immediate family here, but also members of her extended family. This may provide her with some incentive to remain in Australia rather than to return to her home country and it also weakens her incentive to return to her home country, despite the fact that she has there a mother and father and brother, her mother being ill. The Tribunal can therefore place only limited weight on the fact that her parents are still in India as incentive for her to return.

The value of the applicant’s courses to her future

The applicant has provided a number of different explanations as to the reasons for her courses of study and the variations in those reasons lead the Tribunal to form the view that it cannot be satisfied as to what in fact her goals are. This in turn means that the Tribunal cannot be satisfied that the current course being completed by the applicant has any value to her future.
What the applicant told the Tribunal about her goals for the future at the hearing are set out above. In summary, it appears that the applicant wishes to work for her father’s expanded business and to assist her brother in running his small restaurant.
In their decision record the delegate made reference to a genuine temporary entrance statement provided to the Department. The details in the statement as recounted by the delegate in their decision are are different to those the applicant gave to the Tribunal at the hearing. In that statement to the Department, the applicant told the Department that the applicant had considered a future career plan based on a dream to open a restaurant dedicated to Indian cuisine fusion food. According to the delegate she said that she had realised she needed to explore the fascinating world of business and food and wished to study business and food to enable her to embark on a business idea and how the food business is little impacted by economic changes. It is not clear what that business idea was. The applicant also told the Department that she had been offered employment as the assistant hotel manager of the Sunny Hotel, Restaurant and Beer Bar after her studies are completed.
The Tribunal accepts that given the passage of time that offer of employment may no longer be available, however, the fact that the applicant was looking for employment in the hospitality industry suggests that she was not interested in working with her father. This contradicts the information provided to the Tribunal at the hearing.
The letter filed by the applicant’s migration agent dated 22 May 2019 says about her intentions:
When she has completed her studies, she intends to return to India to seek employment in the hospitality industry which is a rapidly growing industry as tourism increases.
Upon gaining experience as a cook and chef, she intends to open a Restaurant in her neighboring large City with the finances for such an enterprise coming from her husband and Brother in law who own a large farming property producing wheat and rice.
The possession of an Australian Bachelor Qualification will be extremely favorable for her employment and business prospects in India. The qualification in similar courses is strictly a theoretical program whereas the training given in Australia encompasses a significant component of workplace training along with the opportunity wo work in the hospitality industry for 20 hours pr week which is invaluable
The Diploma of Hospitality gives skills and Knowledge of operating a kitchen at a micro level in a restaurant or hotel, whereas the Degree in Business provides the Skills and Knowledge of Management at a macro level includes Accounting, Marketing, Forecasting, Leadership and Management.
On completion of her studies she will return to India to fulfill her aspirations.
There is nothing wrong with having such aspirations. However at the hearing of this matter before the Tribunal not only did the applicant not tell the Tribunal of the above, but she told the Tribunal something quite different about her aspirations, namely, that she intended to return to India to assist her father in expanding his import/export business and assisting her brother for perhaps two days a week in his restaurant. As a result, the Tribunal cannot be satisfied that the applicant has provided to it any acceptable information as to her intentions as to her future or what she desires to achieve from her current studies.
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 and Regulations 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, and in an acceptable form 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 provided by the applicant, including the information previously provided by the applicant to the Department, and the information provided by the applicant’s agent. Because the applicant has provided what the Tribunal considers to be inconsistent and conflicting information on important matters that would assist it in reaching a finding about whether the applicant satisfies the genuine temporary entrance criterion, the Tribunal can give no weight to the applicant’s stated goals for the future and intentions in regards to her study and career, or therefore the value of the course she is currently studying, or her past courses, to the applicant’s future. The absence of any weight in her favour in relation to those factors weighs heavily against her being granted a Student visa.

The applicant’s travel and visa history

The applicant returned to India in 2017 to see her mother and to lodge another visa application. She lodged an application for a Temporary Business Entry (class UC) Temporary Work (skilled) (subclass 457) visa.
The applicant told the Tribunal at the hearing that she was encouraged to apply for the visa because when working as a cook the owner suggested she stay and work with them. Because she was on a bridging visa she said she could not, but she then went home and she spoke to her husband, who suggested she should take it. The owner said he would help her get a sponsor. She got a sponsor, and everything was prepared for her. The nomination of sponsorship was approved, however she was told she could not lodge the visa because she was on a bridging visa. As far as she is aware the application was refused, and there is no review or new application on foot.
The Tribunal put to the applicant that it appeared that, having been told her application for the Student visa had been refused, she had applied for the work visa as a means to remain in the country. The applicant denied this. She said she wanted the experience of working for the restaurant, and that everyone seemed to like her cooking. The applicant said that the owner of the restaurant encouraged her to apply. She wanted to complete her studies and work side by side with the owner of the restaurant. The applicant said that she believed that the work visa would enable her to complete her studies. Therefore, while the applicant has had another visa refused, the Tribunal places no weight on the reasons for the refusal, although it does place weight, as described below, on the fact that the applicant applied for the visa at all.
While it may be, as the applicant’s representative put to the Tribunal, that the applicant was being used by the owner of the restaurant for whom she works, that does not explain her reasons for acquiescing and agreeing to apply. The applicant told the Tribunal that the owner of the restaurant assured her that she could study and work at the same time on the work visa, however, the applicant was also of the view that because the people who ate in the restaurant liked her cooking, she should stay and continue to work. This appears to the Tribunal to be an attempt by the applicant to cover her bases, in that if her Student visa was refused, then she could nevertheless remain and work and possibly still study on the work visa, if the owner’s advice was correct. Whether the applicant received the incorrect advice or not, the applicant has shown that she is prepared to try other means to remain in Australia, and this adds weight to the proposition that she is not a genuine student, and is circumventing the intentions of Australia’s migration programme.
The applicant has not returned to see her mother because, she said, her mother wanted her to stay home for over 3 months. She knew that because she was studying, or on a bridging visa, she could not stay for that long. She said that she speaks to the doctor, and he says that her mother is OK, but that she should not be stressed. He encouraged her to remain in Australia and complete her studies. In her letter to the Tribunal dated 21 May 2019 the applicant said that she had not been home because there had been ups and downs in her studies and therefore she did not get the chance to visit her family. However, the applicant did not explain at the hearing or elsewhere why “ups and downs” in studies impact on a person’s travel to see family. The applicant has asked the Tribunal to place weight on the fact that her mother has been ill as a reason why, according to her at the hearing, she was unable to complete her masters course in Sydney and, in effect, her course at Curtin University, however, the Tribunal notes that the applicant has not returned to see her mother other than once in 2017. While the Tribunal acknowledges that the applicant may not have wanted to have a confrontation with her mother about why she could not stay for three months if she returned or why she was taking so long to complete a course which she should have completed by July 2016, the Tribunal is not satisfied that those reasons outweigh the concern the applicant expressed for her mother’s illness and that being the reason that she found it difficult to apply herself to her studies. As a result, the Tribunal is not satisfied that the applicant’s family and their circumstances in India provide strong community and family ties such that there is significant incentive for her to return to India.
The applicant’s husband has been in consistent employment in Australia since their arrival. Since 2017 the applicant has also been in constant employment in Perth at an Indian restaurant and now at an aged care facility. The Tribunal is satisfied that the employment history and potential of both the applicant and her husband provides ties to the community here in Australia and an incentive to remain in Australia, adding weight to a finding that the applicant is using the Student visa to maintain ongoing residence in Australia. The Tribunal gives this factor weight against the applicant being granted a further Student visa.
The applicant has not otherwise had a visa refused or cancelled elsewhere, and there is no evidence before the Tribunal to suggest that she has not otherwise complied with visa conditions either in Australia or elsewhere. There are no other outstanding visa applications yet to be finally determined. There is no evidence that any of her family have an immigration or visa history of concern. The Tribunal gives the applicant some weight in her favour for those factors.
The applicant first came to Australia on 7 February 2014 having been granted a Higher Education Sector (subclass 573) visa to undertake a Master of Business Administration from June 2014 to 31 July 2016 at the University of Western Sydney. It is understandable that the applicant was worried about her mother, if she knew how ill she was then, and many young people struggle with higher education, one expects particularly if they are studying in a foreign language, and have had little experience of the education system in the country in which they are now studying. Therefore, the Tribunal does not place any weight against the applicant for being unable to complete her first enrolled course. There are reasonable reasons for the applicant not doing so.
However, as was noted by the delegate, the applicant was initially granted a Higher Education Sector visa based on her intention to study a Masters degree. Given her failure in the first semester of the Masters course, the applicant ceased her enrolment and ultimately enrolled in and completed a Diploma of Management, and Certificates III and IV in Commercial Cookery. These courses were followed by enrolments in and completion of the Diploma of Hospitality Management and the Advanced Diploma of Hospitality Management. The applicant is now completing a Bachelor of Business at Southern Cross University. While the applicant has said that once she completes the Bachelor of Business she will return to her home country, that means that she will return without achieving her stated goals when she arrived of completing a Masters degree. The applicant left her home country with a bachelor level education and she will therefore have not progressed in the 6 ½ years in which she has been in Australia studying.
While there is no evidence before the Tribunal that the applicant has been in breach of any visa conditions in Australia or elsewhere, the applicant has not progressed in her studies, and is not studying at the level in which she was originally granted her visa. The Tribunal has given that a little weight against her. In addition, the applicant, should she complete her current course, will have taken 6 ½ years to have completed a course at a level at which she already has a qualification, and the Tribunal also gives this a little weight against her.
As the delegate has also noted, the applicant did not advise the Department of her change in enrolment or apply for the appropriate visa. While the Tribunal accepts that the applicant may have received some incorrect advice, or a promise from an agent which was not fulfilled, it is the responsibility of the applicant to understand their obligations under the Australian Visa programme. The Tribunal notes that the applicant is capable of research and completing diploma level courses and therefore is of the view that she is capable of understanding her obligations and ensuring that they are complied with. The Tribunal is not satisfied that the applicant has a reasonable reason for not notifying the Department of her change in enrolment. The Tribunal is of the view that this failure is important to its determination in this case as it illustrates the intentions of the applicant to circumvent the Department, and the Tribunal gives this factor a little weight against her.

There is no evidence that any of the applicant’s family have an immigration or visa history of concern. The applicant has not travelled to any other country and has therefore not had a visa refused elsewhere or considered for cancelation anywhere. The Tribunal gives the applicant some weight in her favour for those factors.

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

Neither the primary applicant nor her husband are minors, and therefore the intention of a parent, legal guardian or spouse of the applicants are irrelevant.

Any other relevant matters

The Tribunal notes that as described above the applicant has said in her response to the invitation to provide information pursuant to section 359(2) that in Australia is a person that she has described as ‘’son.’’ The applicant did not refer to this person in her letter to the Tribunal or in any other material provided to the Tribunal. In her statement to the Department she said that her son was living in India. Given her answer in the response to the request pursuant to s 359(2), that no longer appears to be the case. This person is not an applicant in relation to this review. The Tribunal has taken into account the fact that the applicants’ son now appears to be living in Australia as described elsewhere in these reasons. Therefore, while not spoken of in the Tribunal hearing, the Tribunal is of the view that the existence of their son, and the fact that he now appears to be living in Australia, is relevant, and it has accorded this factor weight, as has been described elsewhere in these reasons.
Otherwise, the Tribunal is satisfied that there are no other relevant matters.
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.
In relation to Mr Sukhraj Bir Singh, the Tribunal is not satisfied that clause 500.311 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that a visa will be granted where:
500.311
The applicant is a member of the family unit of a person (the primary person) who holds a student
visa, having satisfied the primary criteria for that visa, and either:
(a) the applicant became a member of the family unit of the primary person before the grant of the student visa to the primary person, and was included in:
(i) the primary person’s application under subregulation 2.07AF(3); or
(ii) information provided in relation to the primary person’s application under subregulation
2.07AF(4); or
(b) the applicant became a member of the family unit of the primary person:
(i) after the grant of the student visa to the primary person; and
(ii) before the application was made.
As the primary applicant Nath Mandeep Kaur was found not to meet 500.212, the dependent applicant, Mr Sukhraj Bir Singh does not satisfy 500.311.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Genevieve Cleary
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.

[2019] AATA 6913

1 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice