KAUR (Migration)

[2019] AATA 3178

KAUR (Migration) [2019] AATA 3178 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maninder Kaur
Mr Inderjit Singh

CASE NUMBER:  1733163

DIBP REFERENCE(S):  BCC2017/3523632

MEMBER:Robert Cumming

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 July 2019 at 1:53 pm (QLD time)

DATE OF WRITTEN RECORD:                12 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa –genuine temporary entrant criterion not met –ongoing Subclass 187 visa application– – used student visa to maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 December 2017 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 4 July 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The primary visa applicant (the applicant) applied for the visa on 26 September 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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

5. The applicants appeared before the Tribunal on 4 July 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

9. Clause 500.212 requires as follows:

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

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

   (i)     the applicant’s circumstances; and

   (ii)    the applicant’s immigration history; and

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

   (iv)     any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

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

12. The applicant presented written submissions (including information in the form of her completed Request for Student Visa Information form (Information form) received by the Tribunal on 1 May 2019) and oral evidence at hearing about her circumstances which may be summarised as follows:

    (a)The applicant has family connections in India, namely her father and her brother and sister. Her father is currently with her here in Australia on a visitor visa due to end approximately at the end of August. She has contact with those family members on a daily basis by telephone or computer application.

    (b)The applicant says her family come from the higher middle class and she would be able to be supported if she had to return to India.

    (c)The applicant gave evidence that there are no requirements for military service commitments for her to undertake should she have to return home nor is there any political and civil unrest in the area in which she lives.

    (d)She does not own any assets in India.

    (e)Here in Australia she has her husband and her daughter, born on 20 February 2018. Her daughter was born after the visa application was refused by the delegate and as such does not therefore appear as a secondary applicant to the application. The applicant advised that no other family members, of either herself or her husband, are living in Australia.

    (f)As to a social circle, she does have friends, not a large circle, and does socialise with these people maybe once or twice a month. Her husband is currently working as a driver full time but she is not working herself.

    (g)To enable her and her husband to live in Australia and meet the costs and expenses of her living and studying here, her father provides that support.

    (h)During the hearing the applicant was given (under the provisions of s.359AA of the Act) a copy of the printout from the Provider Registration and International Student Management System (PRISMS) record, which she was given time to consider and which thereafter she did not seek to dispute. It shows that she had a number of enrolments which were not completed. The applicant gave evidence that poor immigration agent advice at the time and also a degree of homesickness led to non-commencement or non-completion of those studies.

    (i)In the time she has been here in Australia, the applicant advises that she has completed a Diploma of Business and she is currently enrolled in a Bachelor of Business course which on the current Confirmation of Enrolment (CoE) is due to conclude on 31 July 2019. The applicant advised she has completed all her academic requirements for that course and is awaiting the issue of results. She expects to pass the course. After that she is confirmed in an enrolment for a Master of Professional Accounting which will be conducted during the period 1 August 2019 to 15 December 2020.

    (j)When questioned by the Tribunal as to why studies were being undertaken in Australia rather than in India, the applicant gave evidence that the course was well regarded in India and she would be in a position to get better employment as a result of those studies potentially as a financial advisor or in a firm of chartered accountants or equivalent.

    (k)Moreover, in explaining why the applicant was not undertaking those studies in India, she explained this by reason of the fact that, while tuition fees are largely similar to those in Australia, she felt, although did not give any particular evidence of this, that the nature of the education in Australia was more practically focused than she would receive in India. There was the added factor that because of competition for places in India, students were expected to make donations to the universities with a view to aiding their enrolment process which meant that it would cost her a lot more to study in India than it would in Australia.

    (l)The applicant was questioned as to why she was studying in the accounting field when she had changed courses over the time of her study in Australia, commencing in February 2014. That study was initially Information Technology-based which related to her existing qualifications of a Master Diploma in Computer Application she had obtained in her home country.

    (m)The reason for poor progress was explained by the applicant at hearing on the basis of the somewhat difficult nature of studies coupled with a great degree of homesickness at the time, particularly due to her mother’s illness and, very sadly, her mother’s passing at the end of 2016.

    (n)The applicant points out having got over those personal traumas since approximately – for the last, at least, two years during which time she has been progressing satisfactorily in her business studies and now seeks to put those to effect in a professional accounting degree which the applicant submits will assist her to obtain better remuneration in India.

    (o)While the applicant did not provide any evidence of that, her evidence was based, she said, on internet reviews which indicated that qualifications of that nature would result in, approximately, an income of at least $2,000 a month in Australian terms better by having those qualifications.

    (p)The Tribunal expressed its concerns that during the course of her Bachelor of Business Studies the applicant had actually failed her accounting studies and then had passed them but with only a bare pass. The applicant acknowledged this and said some of that was attributed to the young age of her child and having to support her but she feels she is now back on track and did in fact pass the course even though it was a bare pass and she does indicate that she does consider she will be able to meet the requirements of the Master of Professional Accounting course.

    (q)As to travel to Australia, it is noted (from the Information form and departmental movement records given to the applicant under s.359AA of the Act) that the applicant arrived in Australia on 12 May 2014 and has had one departure during that time during the period of November 2016 into February 2017 during the time of, sadly, her mother’s terminal illness.

    (r)When put to the applicant by the Tribunal of a concern of the lack of travel to her home country, the applicant did say that she can keep in contact with her family by means of telephone and says that does indicate closeness to her family.

    (s)The applicant did have difficulties in the early stages of her study, and this is highlighted in the decisions of the delegate particularly in respect to meeting visa conditions. The applicant explained this, as noted, in terms of poor advice by her then migration agent coupled with homesickness and certain other personal reasons.

    (t)The applicant confirmed in evidence and also in her Information form that she had been involved in an application for a grant of a Subclass 187 visa which application has been initially refused but the applicant advised the Tribunal during the hearing that that matter is ongoing for review within the review system that applies.

    (u)In respect to residence in Australia, it was put to the applicant that were she able to secure employment in Australia, particularly given her current studies, if she was offered the opportunity to work in an accounting firm would she take that up and she answered, having been put to her out of fairness on two occasions, that she would accept that employment. This is in line with the statement to accompany her visa application initially which highlighted her desire to stay in Australia and work in Australia should that situation arise.

    (v)As there is technically no minor involved there is no necessity to consider that situation.

    (w)As to any other matters of relevance, the applicant did not suggest there were any other matters of relevance that the Tribunal should take into account having been given that opportunity.

13. Having had regard to the applicant’s evidence and submissions, and her responses to the possible concerns raised by the Tribunal, as summarised above, and giving consideration to all the factors specified in Direction No. 69, the Tribunal makes the following findings:

    (a)It can accept the reasons given by the applicant for undertaking studies in Australia rather than at home in India.

    (b)The applicant does have ties in India, namely her father when he returns home and siblings, but notwithstanding this she has remained in Australia for nearly five years and has only made one return visit home during her mother’s illness and that, coupled with the fact that she can maintain residence in Australia and keep in contact with her family without having to travel there, leads the Tribunal to the conclusion that the applicant’s ties in India do not serve as a significant incentive for her to return home.

    (c)Because the applicant’s family had the wherewithal to support her financially, economic circumstances in her home country would not present a significant incentive for the applicant not to return to her home country.

    (d)There are no requirements for military service commitments affecting the applicant which would present as a significant incentive for her not to return to her home country.

    (e)There are no circumstances of political and civil unrest in the applicant’s home country which would serve as a significant incentive for her not to return to her home country.

    (f)In considering the applicant’s circumstances in her home country relative to the circumstances of others in that country, the Tribunal finds the applicant comes from a higher middle class family but otherwise did not make any findings in that regard which are other than entirely neutral towards the applicant.

    (g)The applicant has ties in Australia being the funding and support of her stay in Australia to study meaning the applicant is not required herself to provide for her costs and expenses of living in Australia. She has her husband and daughter living in Australia and she has her father now visiting her which, together with the ability to remain living in Australia but still contact her family leads the Tribunal to consider this presents a strong incentive for her to remain in Australia.

    (h)While the Tribunal can accept that the applicant initially came to Australia to undertake studies to enhance her skills, knowledge and experience in the IT industry, she did have problems, which she has explained. The fact that:

    i.she is now progressing studies in accounting when she had difficulty in her undergraduate degree in that regard;

    ii.together with her stated intention (both in her visa application and again today before the Tribunal) that she would take employment in Australia if she could;

    iii.her Subclass 187 visa application is ongoing,

    all lead the Tribunal to conclude the student visa program is being used by the applicant to circumvent the intentions of the migration program.

    (i)For similar reasons, the Tribunal finds that as far as the applicant is concerned, the student visa is being used to maintain ongoing residence in Australia.

    (j)Because the applicant does not herself benefit by being in a relationship with the secondary applicant because he is not an Australian citizen, there is no evidence to suggest they had entered into a relationship of concern for a successful student visa outcome and in fact they were married in India before they arrived in Australia.

    (k)The applicant has demonstrated adequate knowledge of living in Australia and her intended course of study in the associated education provider.

    (l)The current course of study the applicant is undertaking does move away from her initial qualifications gained in her home country however the Tribunal does accept that a change of career course is understandable and it does accept that her studies would assist her to obtain employment in her desired field of accounting with improved prospects in her home country.

    (m)For similar reasons the study is relevant to her likely future employment in her home country and also based on the evidence the Tribunal was given by the applicant, she can expect to obtain remuneration that is of a suitable nature to her by using the qualifications in her proposed course of study.

    (n)As noted in the delegate’s decision, there have been some issues with visa compliance before and there has been the refusal of the Subclass 187 visa but otherwise evidence would suggest that any other visa the applicant has had has not been refused or cancelled.

    (o)There is no evidence before the Tribunal of failure by the applicant to comply with the migration laws of any other country.

    (p)Were the applicant to remain in Australia to the completion of her proposed studies, she will have been in Australia for six and a half years in circumstances where, as noted above, she has expressed the desire, if at all possible, to gain work in Australia and also has the Subclass 187 visa review process still underway which leads the Tribunal to the conclusion that the use of the applicant’s student visa is primary for the maintenance of ongoing residence in Australia.

    (q)Although the applicant does have a child, that child was not a secondary applicant due to the date of birth and as such it is unnecessary for the Tribunal to make any findings in respect of any minor.

    (r)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant.

14. Balancing all these factors, the Tribunal considers the weight of evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of her case. The Tribunal’s view is that the evidence weighs more heavily in the view of the Tribunal to establish that there is not significant incentive for the applicant to return to her home country and that the student visa is being used to maintain ongoing residence in Australia than do the other findings which are in favour of the applicant.

15. Having had regard to all matters, including the Direction No. 69 requirements to which regard is required, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

    Conclusion on cl.500.212

16. 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.

17. 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.

    Secondary applicant

1. The secondary applicant’s visa application is dependent on the success or otherwise of the applicant’s visa application. In particular, cl.500.311 of Schedule 2 to the Regulations requires the secondary applicant, namely Mr Inderjit Singh to be a member of the family unit of a person who satisfies, or has satisfied, the primary criteria for a student visa.

2. It follows that because the applicant has been found not to meet the criteria for the grant of a student visa, the secondary applicant does not meet the secondary criteria for the grant of Subclass 500 (Student) visa and the decision under review must be affirmed.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants Student (Temporary) (Class TU) visas.

   Robert Cumming
   Member