Kaur (Migration)

[2018] AATA 5823

Kaur (Migration) [2018] AATA 5823 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jaspreet Kaur
Mr Dalvir Singh Gill
Ms Ridham Kaur Gill

CASE NUMBER:  1712945

HOME AFFAIRS REFERENCE(S):           BCC2017/639108

MEMBER:Mark Bishop

DATE:4 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 December 2018 at 12:24pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine applicant for entry and stay as student – no GTE statement provided – using student visa programme to maintain ongoing residence – no evidence of visa breach – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211-500.218
Ministerial Direction, MD 69, cls 9 and 10

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 1 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 16 February 2017. 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 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 was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration visa and study history in Australia. The delegate made a finding the applicant arrived in Australia in November 2008, has maintained constant residence since that time, has rarely left Australia since initial arrival and did not engage in any study from 9 October 2012 until enrolment in a Bachelor of Business on 13 March 2017.

6. The applicant advised the Tribunal there were no errors or mistakes in the decision of the delegate

7. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

8. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

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

10. 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?

11. 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.

12. 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.

13. The delegate made a set of findings as follows:

    ·The applicant first arrived in Australia in November 2008 and has held a succession of TU-572 visas, Temporary work visas and appropriate Bridging visas until the present time;

    ·The applicant did not undertake any study onshore from 9 October 2012 until 13 March 2017;

    ·Her (then) current enrolment in a Bachelor of Business was unrelated to previous study in Hospitality Management and Electronics and Communications Engineering;

    ·The applicant provided a Genuine Temporary Entrant Statement (GTE) to the Department.

14. The applicant advised she had been employed as a full time worker in the years 2013 until 2017 as an electronic technician and carried out design, computing, testing and programming functions. The applicant earned approximately $52,000 per annum. The applicant advised she did not seek to do any study in this period. She did not consider study in this period.

15. The applicant provided proof of graduation in a Bachelor of Business dated July 2018.

16. The applicant provided a Confirmation of Enrolment (COE) in a Master of Business Administration that commenced 30 July 2018 and is scheduled to conclude 31 December 2019.

17. On 10 October 2018 the Tribunal wrote to the applicant and requested she provide the following information at least 7 days prior to the scheduled hearing date:

    ·A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.

    ·Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

    ·We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

    Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.

18. The applicant did not provide a GTE Statement to the Tribunal as requested.

19. At the conclusion of the review hearing the Migration Agent (MA) for the applicant made submissions that it was not easy for a married woman to go and study in different cities in India, that expenses were high in Australia. He also advised the confidence level of Indian students after prolonged exposure to living in Australia was very high when they eventually returned to their home country.

    Ministerial Direction Number 69

20. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

21. The Tribunal considers cl.9 and 10 of MD69 the applicant’s circumstances in his home country.

    The applicant advised she did not consider the option of studying in her home country. The applicant advised she did not enroll in or seek to enroll in any courses in her home country. The applicant thought it best to study in Australia. The applicant advised she did not make any inquiries as to course availability timing or flexibility of educational institutions in India. The applicant advised she did not have any proof of any contact at to educational institutions in India. The applicant advised she did not have any contact with educational institutions in India

22. The Tribunal is of the view the applicant does not have reasonable reasons for not undertaking the study in her home country

23. The applicant advised her parents are alive in India. She advised they were very wealthy. One brother only lives in India. The applicant advised she did not own any assets in India. The applicant advised she had returned home on two occasions since coming to Australia. The applicant advised she used tools of social media to maintain contact with family in India. The applicant advised she found this to be satisfactory.

24. The Tribunal is of the view the extent of the applicant’s ties to her home country do not serve as a significant incentive to return to her home country

25. The applicant advised she was currently working part time as a kitchen attendant at Altona Aged Care for 20 hours per week at $24 per. She also receives mandatory superannuation contributions. Her Husband works part time as a contractor for NBN and during holidays as a full time worker and earns $35 to $37 per hour. The applicant and her husband receive $15,000 to $20,000 per annum from India.

26. The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive for the applicant not to return to her home country.

27. The applicant advised her parents are very wealthy. They own a significant acreage of farm land. They own apartments. Her parents owns 80 acres of land worth $12 million AUD. It will pass 50/50 in due course to her and her sibling.

28. The Tribunal is of the view the applicant’s circumstances in her home country are better off than most in her home country.

29. The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.

30. The applicant lives with her husband and one child near Werribee.  Her husband has brother and cousins living in Melbourne and Bendigo. They see their family in Melbourne often. The applicant is a Sikh. She attends temple regularly in Hoppers Crossing. She attends for purpose of prayer and also attends social and festival events. She has friends who attend temple. She participates in outreach activities and community assistance. She attends communal eating at temple. She advised participation in temple was important to the applicant so that her daughter could learn her own language and how to treat elders with respect. The applicant advised her daughter attends the local public school. The applicant attends parent and teacher evenings. She attends school activities and school functions with her daughter. There is a large Indian community where she lives at Truganina (3029). She participates in the local Indian community.

31. The Tribunal is of the view the applicant has developed a well-ordered and well-structured life in Australia. That life involves her own family, study, well paid employment, well paid employment of her husband, participation in her community where she lives, active engagement with the local Sikh community in Melbourne on an ongoing basis and involvement like many parents with her daughter’s education. The applicant has a full and busy life.

32. The Tribunal is of the view the applicant’s ties with Australia present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa programme to circumvent the intentions of the migration programme. The Tribunal is of the view the applicant is using the student visa programme to maintain ongoing residence in Australia.

33. The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.

34. Applicant wishes to open her own business in India as an electronic technician and make electronic signs.  She advised she will use the skills and knowledge gained as an electronic technician in Melbourne where she had been employed for a period of four years on a full time basis. She advised she wants to acquire management skills as well. She advised she recently completed a Bachelor degree in Business. She advised she did not wish to have a visa refusal and hence be unable to visit other countries. She advised her parents will provide capital.

35. The Tribunal discussed with the applicant the utility of her current Bachelor degree in Business. The Tribunal is of the view the applicant is a highly skilled, intelligent, motivated and hard working woman. She has impressive qualifications at VET level in her chosen field. She has many years of experience working in this field in Melbourne. She has industry knowledge and experience. She has a theoretical understanding of management concepts gained through her study at University level in Australia. She wishes to open her own business in the same or a similar industry in which she was employed in Australia for four years. The applicant is a qualified, educated and industry experienced worker. The applicant now seeks to pursue a Master level degree in a similar field to her Bachelor degree. Even with this qualification the applicant advised she would open her own business in the same industry she was employed in Melbourne. The applicant did not in any serious way relate her further study to opening her own business. She did not provides any submissions or seek to explain its relevance to her future. She was more concerned a refusal of her application for a student visa might prevent her from entering other countries. She did not provide any detail to support this statement of concern.

36. The Tribunal is unable to see any relevance of the course to the student’s past or proposed future employment either in her home country or a third country.

37. The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.

38. The Tribunal notes that cl.13 of MD69 makes it clear an applicant’s immigration history refers both to their visa and travel history.

39. The applicant has been continuously resident in Australia since 2008 as the holder of successive student, temporary work and relevant bridging visas. She has rarely returned to her home country. There was no evidence the applicant had been in breach of conditions attached to her visa.

40. The Tribunal considers cl 15 and 16 of MD69 if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant and any other relevant matters.

41. As the applicant is over 18 years of age, the intention of their parent, legal guardian or spouse was not relevant to the Tribunal’s assessment.

42. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia and find that there are no other relevant matters for consideration.

43. The Tribunal has considered all of the information provided by the applicant in support of their application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding their circumstances in their home country, potential circumstances in Australia, immigration history and the value of their proposed course to their future are sufficient to demonstrate that they are a genuine temporary entrant.

44. 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).

    Dependant applicants Ridham Kaur GILL and Dalvir Singh GILL

45. The above dependant applicants are the husband and child of the applicant. As the primary applicant was found not to meet cl.500.212 the dependant applicants do not satisfy cl.500.311. Accordingly the Tribunal refused the applications by the dependant applicants for Student visas.

    Conclusion on cl.500.212

46. 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.

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

    Mark Bishop
    Member