KAUR (Migration)

[2019] AATA 599

KAUR (Migration) [2019] AATA 599 (15 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs HARDEEP KAUR
Mr SIMRANPAL WALIA
Miss EKAMPREET WALIA

CASE NUMBER:  1713149

HOME AFFAIRS REFERENCE(S):           BCC2016/4117301

MEMBER:David Barker

DATE:15 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2019 at 3:33pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – academic progression – personal and economic ties to home country – employment history in Australia – pattern of stable employment – no specific planning for establishment of business in India – failure to provide banking and taxation records – 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 Immigration and Border Protection on 5 June 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 December 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.

3. 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 there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicants appeared before the Tribunal on 14 November 2018 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 applicants were assisted in relation to the review by their registered migration agent.

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

   Background

7. The applicant is a national of India and is 33 years old.  The second named visa applicant, her husband, is also a national of India and is 35 years old.  The third named visa applicant is the first-born child of the parties and is six years old, she is at present in the care of the parties’ grandparents in India.  Their second born child was born in 2017 and is with the applicant and second named visa applicant in Australia.

8. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant came to Australia in May 2009 on a Subclass 572 Student visa. The delegate noted that an examination of the applicant’s study history in the Provider Registration and International Student Management System (PRISMS) indicates that she has been enrolled to undertake the following courses:

   ·Advanced Diploma of Accounting

   ·Diploma of Accounting

   ·Certificate IV in Accounting

   ·Diploma of Business Management

   ·Certificate III in Food Processing.

9. At the time of her application for a Subclass 500 Student visa in December 2016 the applicant was proposing to undertake a Bachelor of Accounting, which would be completed in December 2018. The delegate was not satisfied that at the time of their decision in June 2017, there was adequate academic progression evidence in the applicant’s studies while in Australia since 2009.

10. The delegate noted that the applicant had not demonstrated she has substantial economic ties or personal assets in her home country. The delegate noted that while the applicant had parents and a sibling in India, she also had her husband and her child in Australia with her.  The delegate considered the applicant’s limited time offshore since 2009 gave rise to the concern she has not maintained strong ties to her home country and that when taking into account the disparity in the economic circumstances between India and Australia and the applicant’s economic circumstances in India, relative to her potential economic circumstances in Australia she may not have significant incentive to return to India.

11. On 28 September 2018, the Tribunal wrote to the applicant inviting her to attend a hearing on 14 November 2018. That invitation among other matters, requested the applicant provide an explanation of any gaps in her enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether she intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked her to provide a written statement addressing this issue by referring to Direction 69, which was attached.

12. Prior to and at the hearing, the Tribunal received documents from the applicant including:

    ·     evidence of her current and past academic study in Australia, namely: Certificate II in Food Processing (Retail baking) Cake and Pastry – 2009 / 2010, Diploma of Business Management – 2010 / 2011, Certificate IV in Accounting – 2013 / 2014, Diploma of Accounting – 2014 / 2015, Advanced Diploma of Accounting – 2015 /2016, Confirmation of Enrolment for Bachelor of Accounting – 2017 / 2018, Academic Transcript for Bachelor of Accounting – 2017 / 2018

    ·     valuation report of property owned by S. Gurinderpal Singh s/o Chambai Singh, located in Amritsar, dated March 2018 – Total value Rs 49,29,600

    ·     valuation report of property owned by S. Gurinderpal Singh s/o Chambai Singh, located in Amritsar, dated March 2018 – Total value Rs 48,15,800

    ·     valuation report of property owned by Smt. Arvinder Kaur w/o Gurinderpal Singh, located in Amritsar, dated October 2018 – Total value Rs 30,00,000

    ·     valuation report of property owned by Smt. Arvinder Kaur w/o Gurinderpal Singh, located in Amritsar, dated March 2018 – Total value Rs 87,72,000

    ·     photographs

    ·     written submissions from the applicant’s representative dated 6 November 2018

    ·     letter of offer and acceptance of enrolment in a Master of Business Administration (MBA) from Group Colleges Australia, commencing January 2019 and finishing December 2020.

13. The written submission provided by the applicant’s representative, among other things, provides the following information and submissions:

    Hardeep Kaur claims that she has always studied in Australia in continuity, completing the courses one by one and progressing to the higher levels. She has really done well with her Bachelor's degree for which she applied her visa and has only 1 subject pending (ongoing) to complete her studies,

    DETAILED SUBMISSION AND PRESENTATION OF FACTS:

    I hereby present the detailed submission and evidences on behalf of my client (also referred as Hardeep in the submission) as below:

    1.     The client, Hardeep Kaur, has been a good student right from her first visa grant and always had the passion to pursue higher education from Australia

    2.     She has pursued 6 Australian qualifications which are listed below:

    ·Certificate 111 in Food Processing - Completed

    ·Diploma of Business Management - Completed

    ·Certificate IV in Accounting - Completed

    ·Diploma of Accounting - Completed

    ·Advanced Diploma of Accounting - Completed

    ·Bachelor's in Accounting — 1 subject pending

    3.     Hardeep is currently pursuing her Bachelors in Accounting and has just 1 more unit left to complete her graduation.

    4.     She has also given a detailed explanation about her future career plans after completing her studies in Australia due to which she has not spared any effort to study at any point.

    5.     Apart from student visa(s) held, she has also been on a Temporary Work Visa (VC 485) and again got back to studies by obtaining visas properly and abiding with all visa conditions.

    6.     She is also a mother of 2 children and has been managing her personal and study life in a very balanced way with the help of her husband & family in India.

    7.     She has been following a chronological approach in her studies throughout all AQF levels and has shown good academic performance in spite of having a visa refusal

    8.     She also intends to study to the highest level and go for a Masters Degree so that she wants to learn the skills and gain the highest Australian qualification.

    9.     She came over to Australia in 2009 on a TU 572 visa and has been studying since then in a good flow.

    10.     She wants to gain good accounting as well as management skills to run her own business. She has tried to learn everything thoroughly right from the basics due to which she started her study in accounting in August 2013 and has been continuing it till date to current Bachelor's level. On completion of her Advanced Diploma of Accounting, she commenced her Bachelor degree in Accounting in January 2017.

    11.  She applied for her Student Visa (TU 500) in December 2016 and proposed to undertake her Bachelor course which was starting from January 2017. Unfortunately, this visa was refused in June 2017 and it came as a big shock to Hardeep as she had been always progressed well in her study according to the levels of the Australian Qualifications Framework.

    12.  Hardeep is a genuine student who has progressed in her studies and has scored high marks. She was in a very stressful situation after the visa refusal where she has always been a very bright student and still the Department did not feel she is a genuine student

    13.  With a lot of determination, she continued her study without losing any hope and now in on the verge of graduating with an Australian Degree by December 2018 as she had proposed while lodging her visa in December 2016_

    14.  She has successfully completed 23 units out of 24 in her Bachelors and is currently enrolled in the last subject of her degree.

    15.  Just as an example of her academic excellence, Hardeep has got 10 exemptions based on her previous vocational qualifications in accounting, she has scored high distinction in 5 units, has scored distinction in 4 units and has 3 credits and 1 pass. This itself proves the quality of academics and skills Hardeep has gained in Australia.

    16.  Hardeep and her husband Simranpal had a second child in August 2017 and their elder child has been living in India with grandparents.

    17.  Hardeep has managed her family life and career very well which proves the stamina of the client and the determination she has for not discontinuing her study in spite of a visa refusal and having 2 young children who needs mother's care and are in a very tender age.

    18.  The client and her husband have plans of starting their own business once she completes her education. As they have a family now, it is very important for them to make a good career. Hardeep wants to become an investment advisor and a financial planner apart from providing the regular taxation services. She wants to deal with individuals who have basic needs like accounting, home loans and even tax planning. She claims that she will also deal with small and medium sized businesses which have needs like business accounting, business financial budgeting, business loan approvals as well as regular internal auditing. She also wants to bring in modern techniques into the business like tow it is in Australia where people use websites, software, phone apps. and even some phone apps to manage day to day accounting for business. This way, she claims that implementing such new methods and adding additional services will make their business have an edge over other businesses. Having Australian qualifications will be a great asset to her as starting a business in her home country where development is still in progress and people need awareness.

    19.  With such clear intentions and study plans, we really see her as a genuine student who has goals in life and as a woman, a wife and a mother who has stood against all odds to achieve higher education.

    FAMILY TIES & FINANCIAL TIES TO THE HOME COUNTRY:

    1.     Hardeep herself comes from a decent agricultural family background where her father is a very passionate farmer and mother is a home maker.

    2.     She got married to Simranpal Singh, into a family with business background where her father- in-law works in the Construction and Building industry as a Building developer.

    3.     Hardeep's husband is the only son of the family who has to ultimately take care of their property and family back home in India.

    4.     Hardeep & Simranpal's daughter, Miss. Ekampreet Kaur (5 year old child currently in India) was born in India itself and is living with her grandparents in India. This evidences the family ties with parents_ Hardeep was facing a lot of stress and pressure as she was pregnant for her second child and simultaneously had to manage her study as well. So, Hardeep should be considered as a mother who has family ties, and also has sacrificed a lot keeping her daughter away from her to study properly. She also has a son who is in Australia at the moment with them. Still, she has studied well and is about to complete her study in time.

    5.     Hardeep has visited India for around 8 months in total since her first visa grant, which is a long period and should be considered as a behaviour of a genuine student.

    IV - ANALYSIS OF THE DECISION RECORD (decision by DMA) & OUR EVALUTION OF THE CASE.

    "I note that over the post 8 years you been studying at the vocational education sector level and hove not progressed academically beyond this level."

    According to the Australian Qualification Framework Levels, the client has successfully passed and progressed through AQF Levels 4, 5, 6 and had proposed to undertake  the   study in Level 7. She started studying VET sector Accounting in November 2013. As she moved from her stream of study from Food Processing / Business to Accounting, she wanted to gain a thorough skill set by studying the basics. As a result, she has successfully completed Certificate IV, Diploma and Advanced Diploma in accounting apart from the other 2 qualifications. It is completely agreed that the client has spent over 8 years in Australia, but the fact is, she has gained 5 Australian qualifications and also held a 485 visa (1 year wait / processing time + 18 months visa) during this time period which proves that she has completely shown efforts in every aspect of learning to make sure no stone is unturned.

    ‘In your statement in support of satisfying the Genuine Temporary Entrant Requirement (GTE), you had given some reasons for choosing the proposed course. i have considered your statement. However, your visa and study history indicate that you appear to have enrolled in this new course for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress.'

    As explained earlier, the client Hardeep has shown very goad course progress in accounting stream. She has completed all the stages of vocational study and commenced her Bachelor degree program in which she has also shown excellence as she just has 1 more unit left to complete her Degree program. Any student who comes to Australia with a lot of hopes will always want to upgrade his skills to have a great career outcome. Hardeep is also one such international student in Australia who made her way till Bachelor degree and has even proved her strength in higher education as well_ Her overall academic progress is brilliant and her genuine interest in study can be seen in her holistic study approach which cannot be denied. Even when she commenced Bachelors, she has taken 10 exemptions based on her vocational qualifications which reduced her course duration to 2 years. If she was a student who just wanted to extend her stay in Australia, she could not have taken the exemptions and extended her stay for 3 years which she did not do but genuinely studied and is about to graduate soon_

    We further want to present that the DHA has primarily observed Just her duration of stay in Australia and made it a key decision-making factor and did not consider important matters like:

    ·Her course completions (First and Second visa Vocational Course Packages) arid meeting all visa conditions.

    ·Her progression to Bachelor's level study and taking exemptions to quickly finish her course.

    ·Approx. 1 years waiting / processing time taken by the Department of Home Affairs (Earlier known as DIAC for grant of 18 months 485 visa (Applied 30105/2011— Granted 21/05/2012) due to which stay was extended.

    ·Her overseas visits / stay period of 242 days (approx. 8 months in total) in her home country out of the total stay in Australia.

    ·The important fact that the diem actually applied for exemptions to reduce the duration of Bachelor's degree prior to visa grant itself

    ·The refusal has impacted the minor children of the visa applicant (First child was included in the application). The DHA should've given a careful consideration to this part and asked for an GTE explanation by the client instead of refusing the visa.. Client would’ve been in a good position to explain her circumstances, course progression and other career goals.

    Hardeep, is a very hardworking and an independent woman who has gone through a lot of emotional, mental and stressful situations due to the visa refusal in spite of having good course progress. She has good results even in her Bachelor degree which shows the kind of focus she has towards her career. She also intends to pursue a Masters Degree on completion of Bachelors as she will have a complete knowledge in accounting right from Certificate IV to Masters Degree. Her education provider has also offered her to study further to the Masters level We find very few students who are so determined about their career and study. She is also a mother of 2 children but still hasn't given up on her career and is striving to prove herself as a genuine student. She also wants to start a business after her studies which needs good skills and she is confident that Australian education system has made her confident.

    It is important to mention that I myself have been working for over 14 years in education industry and have been a teacher as well A student like Hardeep is hard to find, who in spite of being a mother, has focussed on her studies. She has been liked by all our team member and has been appreciated for her dedication and will power. The law of Commonwealth has been known for giving an opportunity to return to life. Even jails are called as Correctional Facilities in Australia. The client is just a brilliant international student who has followed the right approach in study but unfortunately ended in a situation where she is proving her intentions.

    So, we request the tribunal to consider all facts afresh and take a decision in the best interest of client. She also has 2 young children who are innocent and will have to carry a visa refusal tag all their life for no fault of theirs. Hardeep has faced a lot of emotional turmoil and stress due to her visa refusal and still has shown her academic brilliance an all aspects of study which proves that she is a genuine student in Australia.

    The hearing

14. The Tribunal raised with the applicant that the matter before it is whether she meets the requirements of cl.500.212(a). It outlined the section, the relevance of Direction No.69 and that the Tribunal needs to be satisfied on the evidence before it that she is a genuine applicant for entry and stay as a student. In the interests of procedural fairness, the Tribunal provided the applicant with an updated copy of her PRISMS record, which was essentially consistent with the PRISMS information discussed by the delegate in their decision record.

1. The applicant confirmed she will complete the Bachelor of Accounting course in December 2018. She further confirmed she has enrolled in a Master of Accounting course, which will extend her studies in Australia until December 2020.

2. The Tribunal noted the representative’s claim that it took a long time for her application for a Subclass 485 visa to be approved and asked the applicant if she undertook any studies while waiting for this visa application to be processed and during the period she held a Subclass 485 visa after successfully completing her initial course of study, the Certificate III in Food Processing.

3. The applicant said she returned to India for the birth of her first child and stayed there for around four months, between December 2012 and February 2013.  She said that she became aware of her pregnancy in May 2012 and had not wanted to place stress upon herself by studying during the pregnancy.

4. The applicant said in the period between May 2011 and May 2012 she wanted to stay at home, but she did have some part time office administration work. She said that prior to that she had worked on a part time basis for around two years in a Pizza Hut restaurant and also for a period of time in a cake shop in Marrickville, NSW, both baking and serving customers.  She said she had a further part time office administration job for around seven months in the 2012 to 2013 period at Frutex, which is a food ingredient company in Kingsgrove, NSW.  She said she then moved to the dispatch department at this company and worked there until July 2017.  She said she has not had any employment in Australia since July 2017.  

5. In relation to other aspects of her circumstances in Australia and India, the applicant conceded her husband also has a fairly consistent employment history in Australia.  She said her eldest child, a daughter, is in the care of grandparents in India and her second child, a son, was born in 2017 and is in her and her husband’s care in Australia. She said she has no other relatives in Australia and that both she and her husband have a range of relatives in their home country.  The applicant said she was returning to India on almost a yearly basis, most recently two to three years ago.  She said since then she has been waiting until her visa uncertainty is resolved before she travels to India again.

6. As to the relevance of her proposed study to her future employment or business opportunities in her home country, the applicant gave evidence that she continued to study the Bachelor of Accounting course, despite the refusal of her application for the Subclass 500 Student visa and that now she has nearly completed this course and she wants to continue to study a Master of Accounting so she can open a business upon her return to India.

7. The Tribunal put to the applicant that due to the differences in the Australian and Indian economies and the disparity in the potential income earnings of the applicant and her husband in Australia, there is a concern she may have an economic incentive to seeking to maintain her residency in Australia. In response, the applicant said she and her husband are not in Australia to earn money.  She said that she wants to become an independent woman with her own business in India.  She said that if she and her husband are able to establish a business in India, they will have good future prospects in their home country. 

8. The applicant said that she has studied consistently over the time she has held student visas in Australia and that her academic progression has proceeded in a logical manner. She said that if she is able to achieve her study goals, she will be in a position to set up an accounting business in India.

9. When the Tribunal asked the applicant whether she had anything to add she said that she did not.

10. The Tribunal gave the applicant until 28 November 2018 to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter, including further financial records to support her claim to not have an economic incentive for seeking to maintain her residency in Australia, including six months of account statements for all accounts operated jointly or individually in Australia by the applicant and the second named visa applicant and Australian Taxation Office (ATO) Notice of Assessment for the applicant and the second named visa applicant for the 2016, 2017 and 2018 income years. No further evidence or submissions were subsequently received by the Tribunal by 28 November 2018, or by the time of this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 intends genuinely to stay in Australia temporarily.

12. 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?

13. 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.

14. 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.

15. With regard to whether the applicant has sound reasons for not undertaking the higher education sector studies in accounting in India, in her written submissions to the Department and the Tribunal, the applicant has emphasised the passion she has for increasing her skill level and qualifications in accounting so that she can return to her home country to establish an accounting business.  She has not provided specific evidence of any research or steps that she has taken to ascertain the availability of suitable accounting courses that would be available to her in India.  However, I am satisfied it is possible to infer from the evidence she has provided and from her representative’s submissions that she considers it beneficial to maintain the logical progression in her accounting studies in the Australian education system, from Certificate IV through to the Bachelor of Accounting course she was to complete shortly after she appeared before the Tribunal in November 2018.  I consider that this would a reasonable contention, however it is of some concern that the applicant has not demonstrated that she has taken any steps at this point to establish whether there is an appropriate postgraduate accounting course she could undertake in her home country.

16. With respect to the concern raised by the delegate that there was a lack of overall academic progression evident in the applicant’s study history in Australia since 2009, with the benefit of the evidence that is available with regard to her study in the Bachelor of Accounting course, which was to finish in December 2018, I am satisfied the applicant has achieved a reasonable level of academic progress and I have placed some positive weight upon this finding.  I am also satisfied that the study choices made by the applicant, with the exception of her initial Certificate III in Food Processing have a degree of relevance to each other and her stated goal of wishing to set up her own accounting business in India.  I have accordingly also placed some positive weight upon this finding.

17. With regard to the extent of the applicant’s personal ties to India and whether they would serve as a significant incentive for her to return to her home country, I am satisfied the applicant and her husband have a significant familial tie to India in the form of their first-born child who is being cared for there by her grandparents.  I am satisfied that further to this, the applicant and her husband have a range of other relatives in India.  I have however noted that the applicant’s first-born child is a secondary applicant upon the current visa application and if the application is successful, the applicant would have the option of bringing her to Australia, which in my view diminishes the incentive that she would otherwise have to return to India.

18. As to economics assets held by the applicant or her husband in India, I have considered the documentary evidence provided with the review application and in particular, the evidence regarding property assets in Amritsar held by S. Gurinderpal Singh and Smt. Arvinder Kaur, who are the second named visa applicant's parents.  I accept these property assets may form part of the estate of the second named visa applicant's parents, which he may inherit at some future point in time. I am not however persuaded these property assets provide the applicant, or her husband, with a clear incentive to return to India for the foreseeable future, as they have no current ownership or responsibility for them and there is no indication that either of the second named visa applicant's parents are in poor health.

19. There is no evidence before the Tribunal which would suggest the applicant has an offer of employment which she can take up in her home country.  I acknowledge her claims regarding her intention to establish an accounting business and her hope that her husband will also be successful in relation to establishing a business when they return to India.  However, I have placed only limited positive weight on these claims as there is no indication of their undertaking any specific planning or development of a business in India.

20. With regard to the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. The applicant has resided in Australia since 2009 and has a pattern of stable employment with the same employer, albeit in different roles, for much of the time she has been in Australia. She concedes that her husband has also had employment for most of the time he has been with her in Australia.  There is no evidence to suggest that either the applicant or her husband have failed to comply with visa conditions prescribing the extent of part time employment they can hold.  It is however noteworthy that there would not have been the same level of restriction for either of them while the applicant was on a Subclass 485 visa.  It is of concern that the applicant did not provide the banking and taxation records which may have supported her claim that she and her husband have not sought to maintain their residency in Australia for the purpose of earning money.  The Tribunal considers it appropriate to draw an adverse inference from the applicant's failure to provide this evidence following the hearing and has placed considerable weight upon this finding.

21. I accept the applicant has returned to in India on a number of occasions since her arrival in Australia in 2009.  I acknowledge she would have faced constraints upon her ability to travel there since the refusal of her application for the Subclass 500 Student visa in June 2017. I do however consider the relative disparity of time she has spent onshore in Australia, relative to her limited time in her home country to be indicative of the strength of the connection she has developed to Australia in the period since 2009.

22. Upon considering the applicant’s general migration history, I note she applied for a Subclass 485 Temporary Graduate Work visa after completing the Certificate III in Food Processing.  I accept her subsequent employment in a company manufacturing food ingredients, Frutex in Kingsgrove, NSW, is consistent with the qualification she gained in this aforementioned course.  I note that she appears to have not worked for some of the period she was holding the Subclass 485 visa, but note she has a reasonable explanation for this, being her pregnancy and the birth of her first child.  It would appear to me that there is a high degree of consistency in the applicant’s initial studies and her employment history.  I note that there is less apparent connection between the applicant’s employment history and her subsequent accounting studies and while I accept the applicant has drawn a reasonable connection between her accounting studies and her stated future business goals, I do have concern that the length of the applicant’s connection to work in the food preparation vocational sector further reinforces the strength of the connection she has developed in Australia and the economic incentive she may have to seek to maintain her and her husband’s residency here.

23. I acknowledge the representative’s submission in relation to the applicant seeking course exemptions in her Bachelor of Accounting course.  I accept she was motivated to achieve this course with minimal study and have given some positive weight to this finding.  I am satisfied the applicant’s wish to gain accounting qualifications is genuine.  I am however not satisfied it provides her primary motivation for seeking to maintain her residency in Australia on temporary visas for a further period of years.  I note the representative’s submission with regard to the potential impact on the applicant’s children, including the third named visa applicant.  I am not however persuaded any adverse consequences arising from the refusal of the visa application supports the applicant’s claim to meet the genuine temporary entrant criteria.

24. With regard to military service commitments that would present as a significant incentive for the applicant not to return to their home country, there is no evidence to suggest either the applicant or her husband have any such commitments, or concerns about civil or political unrest in India, which may provide them with a disincentive from returning there.

25. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that at the time of the hearing the applicant was enrolled and successfully completing a Bachelor of Accounting, which finished in December 2018; she has a letter of offer for a Master of Accounting that would further extend her time in Australia until the end of 2020; she has strong family ties in both Australia and India; she has successfully completed all courses she has enrolled in while on the student visas; and all the other matters she has raised.  However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons she claims, but rather using it as a pathway to maintain residence in Australia.

26. The Tribunal is therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

27. 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).

28. 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.

29. 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.

    Member of family unit – Secondary visa applicants

30. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  ‘Member of the family unit’ is defined in r.1.12 of the Regulations and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

31. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the second and third named visa applicants are unable to meet the criteria because they are not a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.500.212.

32. Accordingly, the decision under review must be affirmed.

    DECISION

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

    David Barker
    Member