Kaur (Migration)

[2019] AATA 1456

Kaur (Migration) [2019] AATA 1456 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rupinder Kaur

CASE NUMBER:  1818215

HOME AFFAIRS REFERENCE(S):           BCC2018/1968278

MEMBERS:Robert Cumming (Presiding)

Susan Trotter

DATE:24 April 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 24 April 2019 at 2:01pm

Statement made on 24 April 2019 at 3:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change of study direction – regression in level of study – value of course – immigration history – two sisters in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 2018 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 6 May 2018. 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) because the delegate concluded that her intentions for living in Australia were motivated by factors other than study and overall her study was more aligned to using the Student visa program to maintain ongoing residence in Australia.

4. The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was assisted in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

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

11. The Tribunal took into account a written statement of the applicant dated 18 May 2018 provided to the Department, addressing the genuine temporary entrant requirement, including as follows:

    a.The quality of the education she will receive in her area of interest (early childhood education) which quality education she cannot obtain in her home country;

    b.The advantage this will give her to secure higher remuneration back in her home country; and

    c.The exposure she will get to a new culture and new people which will allow her to think out of the box and to come up with unique ideas for education which she could not currently achieve in Punjab.

12. However, that statement also highlighted the pleasant weather, very affordable cost of living and many tourist attractions in Australia which she considered would ensure she would not get bored here.

13. In her most recent submissions she put to the Tribunal, the applicant reinforced her previously stated reasons, including as follows:

    a.While she did not initially intend studying on arriving in Australia, she was exposed to other international students who spoke highly of the education they were receiving here.

    b.Accordingly, she conducted research and found courses of study which were very practically focused (in distinction to the more theoretical learning she would receive in India).

    c.Graduates of Australian educational institutes are highly sought after due to the impressive international reputation the Australian educational system has.

    d.Her qualifications gained in Australia will offer her a career path in early childhood education which offers greater remuneration in India for her than she would receive as a nurse, which was the qualification she had in India before travelling to Australia to visit her two sisters who live in Brisbane.

    e.Her ties to India mean her only concern is to gain the well-regarded educational qualifications she is currently studying for and then she will return home to her family and a likely marriage which her parents will arrange for her.

14. The applicant gave evidence that in India she had been awarded the degree of Bachelor of Science in Nursing from the Baba Farid University of Health Sciences at Farinkot, Punjab in October 2015. From late November 2015 until early February 2018 she worked as a Neuro Nurse at a medical centre (the Bansal Neuro Centre) at Ludhiana.

15. The applicant advised that her family in India, consisting of her father, mother and brother, are a well-to-do middle class family who own commercial property in Ludhiana.

16. The applicant’s family have been supporting the applicant financially in order for her to live and study in Australia.

17. No issues of concern were raised in evidence by the applicant as to any economic circumstances (given her family’s situation) or political and civil unrest where her family lives or for any compulsion for her to render military service in her home country.

18. The applicant on her own admission in evidence before the Tribunal confirmed she had no plans to study when she arrived in Australia. She had arrived on a Visitor visa to visit her two sisters who live in Brisbane.

19. It was only on meeting people who were studying child care and who spoke glowingly of those studies that the applicant decided to undertake early childcare studies.

20. As noted in the delegate’s decision which was provided to the Tribunal by the applicant, three months after the applicant first arrived in Australia in February 2018, as the holder of a Visitor visa, to visit relatives and friends, she applied for the Student visa the subject of this application. As noted by the delegate, the applicant was at the time of the delegate’s decision intending to undertake a Certificate III in Early Childhood Education and Care and a Diploma of Early Childhood Education and Care. The applicant provided documentary evidence to the Tribunal that she completed the Certificate III course on 25 November 2018.

21. The applicant further told the Tribunal that she then sought to study a Diploma of Early Childhood Education and Care at the same institute (the New England Institute of Technology) to be conducted from 3 December 2018 until 7 February 2021. However, that course was cancelled by the institute and she could not commence studies.

22. The applicant’s evidence was that she was, however, able to secure a place in another Diploma of Early Childhood Education and Care course being conducted by the Elite Training Institute in the period 11 March 2019 to 23 November 2020. The applicant provided a current Certificate of Enrolment for this course to the Tribunal.

23. The applicant also stated that studying in Australia rather than at home in India was because the Australian qualifications were more practically directed, she would benefit by the exposure to the cultural diversity studying in Australia offered and that candidates with internationally gained qualifications, particularly from Australia, were well regarded in India. This, the applicant submitted, will enhance her prospects for getting a good job in India.

24. The applicant presented evidence comparing her past salary as a nurse with likely salaries as a childhood educator which she suggested showed higher earning levels than her previous job. The Tribunal allowed time after hearing for further evidence in this regard to be provided and in doing so indicated to the applicant that provision of such evidence may not be given much weight if it was not independent evidence showing a direct comparison of the salaries for the two different occupations.

25. Following the hearing, on 29 March 2019, the application provided further documentary evidence, specifically:

    a.copies of her monthly salary slips covering the periods February 2016 – May 2016 inclusive and July 2017 – February 2018 inclusive;

    b.a printout from the internet showing a salary survey report for the early childhood education industry in India showing the median salary by years’ experience for that industry;

    c.a printout from the internet showing estimated average salaries in India of daycare teachers;

    d.a printout from the internet dated 28 March 2019 showing a job advertisement for a centre officer at St Jude India Childcare Centres, Mumbai, India showing the salary range; and

    e.a letter from Kids Paradise School, Nabha, India dated 13 March 2017 showing the employment of a mother teacher and the salary.

26. However, the Tribunal does not consider that these sources are directly comparable. One is for the particular historical salary of the applicant as a nurse and others are purportedly average or actual salary ranges for childcare industry positions. Similar average or actual salary ranges for advertised positions for nurses with the applicant’s experience are not provided. The Tribunal therefore places little weight on this evidence.

27. The applicant gave evidence to suggest reasonable knowledge of living in Australia and details of her course of studies.

28. The applicant first arrived in Australia on 17 February 2018. She has not since departed Australia.

29. There is no evidence before the Tribunal that the applicant has breached the conditions of any visas she has held to date.

30. The applicant did not suggest there were, or give evidence concerning, any other matters which may relate to her genuine temporary entrant status in Australia.

31. When questioned by the Tribunal on the change of career choice, the applicant advised that she had always wanted to work with children.

32. Having considered the evidence, the Tribunal finds that:

    a.it can accept the reasons given by the applicant for undertaking studies in Australia rather than at home in India;

    b.the applicant has ties in India (her parents and brother) but her conduct in remaining in Australia when she only intended on arrival to visit her sisters and studying in a different subject area and at a lower level of qualification to her existing qualification and work history does not serve as a significant incentive for her to return home;

    c.because the applicant’s family are financially supporting her stay and studies in Australia, there is a significant incentive for her not to return to India;

    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;

    f.the applicant has ties in Australia, namely her two sisters and the funding and support to stay in Australia which present a strong incentive for her to remain in Australia;

    g.because on the eve of the expiry of the applicant’s Visitor visa the applicant suddenly decided to study in a different subject area and at a lower level of qualification to her existing qualification and work history does lead the Tribunal to conclude that the Student visa program is being used by the applicant to circumvent the intentions of the migration program;

    h.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;

    i.there is no evidence before the Tribunal to suggest the applicant has entered into a relationship of concern for a successful Student visa outcome;

    j.the applicant has demonstrated adequate knowledge of living in Australia and her intended course of study and the associated education provider;

    k.while the current course of study is inconsistent with the applicant’s initial intentions and existing qualifications, the Tribunal can accept the applicant can obtain employment in her home country in that field, but the Tribunal is not satisfied this will offer improved employment prospects for her given she already holds a higher qualification, and significant work experience in India, in the occupation of nurse;

    l.the Tribunal can accept that the study the applicant is now undertaking is relevant to her proposed future employment but notes the comments in paragraph 32 k. above;

    m.while the Tribunal accepts that the applicant believes she will be able to secure more remunerative employment in India with her qualifications gained in Australia instead of her India-based nursing qualifications, there is no direct comparable independent evidence to support this;

    n.the applicant was previously granted a Visitor visa and arrived in Australia in February 2018. There is no evidence before the Tribunal that the applicant has ever been in breach of visa conditions in Australia or other countries, nor that the applicant has ever been refused a visa previously;

    o.as there is no secondary applicant involved in the applicant’s primary application it is unnecessary for the Tribunal to consider any intentions in that regard; and

    p.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.

33. The Tribunal has placed weight in the applicant’s favour on the matters noted in the preceding paragraphs consistent with the applicant genuinely intending to stay temporarily in Australia and recognises that it is important to allow for reasonable changes to career and study goals. However, as discussed with the applicant at hearing, in circumstances where the study the applicant is now seeking to undertake in Australia is at a lower level than her level of education in India, and given there is no objectively comparable evidence showing that qualifications in this area would result in improved prospects in India, particularly given the applicant’s extensive work experience in India in the area of her previous studies as a nurse, the Tribunal does not consider this changed career direction reasonable and rather considers it indicative of maintaining ongoing residence in Australia.

34. Having had regard to all of the above matters, including the Direction 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

35. 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.

36. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

37. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Robert Cumming
    Member

    
    

    Susan Trotter
    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.