Kaur (Migration)

Kaur (Migration) [2018] AATA 5011 (16 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yashpal Kaur
Mr Harpreet Singh
CASE NUMBER:  1617986
HOME AFFAIRS REFERENCE(S):           BCC2016/2794694
MEMBER:Michael Ison
DATE:16 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the directions that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations;

and the second named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.311 of Schedule 2 to the Regulations.

Statement made on 16 October 2018 at 5:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – reasonable recent academic progress – maintained enrolment at Bachelor’s level –incentives to return to home country – future career plans – low income earners – no family in Australia – credible witness – secondary applicant – Departmental error – mistaken identity – satisfies requirements – decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 October 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants are Ms Yashpal Kaur and Mr Harpreet Singh who are 25 and 30 year old respectively Indian nationals.
The applicants applied for the visas on 23 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant, Ms Kaur, applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that Ms Kaur did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found Ms Kaur had studied outside the subclass of the visa she held for more than two years, failed to provide information in her application and provided incorrect information and the delegate did not accept that Ms Kaur is genuine in her intentions to remain in Australia as a temporary resident. The delegate also found that Mr Singh provided false and misleading information in his dependent application.
The applicants appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The applicants were represented by Mr Nikolic of Carina Ford Immigration Lawyers. Mr Nikolic attended the Tribunal hearing.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether Ms Kaur is a genuine applicant for entry into Australia and stay as a student.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
Ms Kaur told the Tribunal that she and her family have a comfortable standard of living in India where she does not have much responsibility and intends to return, with there being no impediment to Ms Kaur being able to return. She told the Tribunal she is in Australia to study only and she and Mr Singh earn modest incomes here, but could earn more if they worked full time. Ms Kaur told the Tribunal they could potentially earn more in Australia than India but their cost of living in India would be significantly lower. Ms Kaur says she and Mr Singh will also be able to earn good money in India and their income levels in Australia are not an incentive to remain here.
In support of this evidence, Mr Nikolic forwarded to the Tribunal after the hearing Ms Kaur’s and Mr Singh’s Australian Tax Office Notice of Assessment for the 2016 and 2017 financial years which showed a combined total income for those two years of AU$4,732.69. This is not consistent with Ms Kaur’s evidence that she and Mr Singh have sufficient incomes in Australia to save money and that Mr Singh has recently been earning an average of AU$500 to AU$600 per week. This indicates to the Tribunal that some of Mr Singh’s income is paid in cash. However, the Tribunal finds that in Ms Kaur and Mr Singh’s circumstances an income in the range of AU$26,000 to AU$31,200 per annum is not of sufficient amount to provide significant incentive for them to remain in Australia.
Ms Kaur also told the Tribunal that her family and Mr Singh’s family remain in India and they have no family in Australia, providing them with incentive to return to India.
The Tribunal accepts Ms Kaur’s evidence in relation to this consideration.
Ms Kaur and Mr Singh came to Australia on 26 July 2013, with Ms Kaur intending to study a Bachelor of Information Technology. Ms Kaur did not complete those studies but asserts she has maintained her enrolment at the Bachelor level during her time in Australia and that the delegate’s decision she has breached her visa is incorrect.
The Tribunal provided Ms Kaur with a copy of and discussed her Provider Registration and International Student Management System (PRISMS) record with Ms Kaur in accordance with the procedure required by s.359AA of the Act, including advising Ms Kaur how the information was relevant to her review and the consequences of the Tribunal relying on that information. Ms Kaur was offered additional time to consider her PRISMS record before commenting upon it. Ms Kaur requested and was granted a short adjournment.
Having considered the Tribunal’s discussion with Ms Kaur about the information in her PRISMS record, the Tribunal finds Ms Kaur has completed the following study in Australia:
·Certificate III in Commercial Cookery – 28 June 2016;
·Certificate IV in Commercial Cookery – 20 July 2017; and
·Diploma of Hospitality Management – 18 April 2018.
Ms Kaur provided certificates and letters of completion and related academic transcripts to prove she has completed the above courses.[1] Ms Kaur’s enrolment in a Bachelor of Information Technology was cancelled five times and she is currently enrolled in and studying a Bachelor of Hospitality Management[2] which she is due to complete on 15 December 2019.
[1] Tribunal file, folios 74 to 85.
[2] Tribunal file, folio 86.
Ms Kaur’s evidence is that she struggled to adapt to the Australian education system early in her studies, found the information technology studies difficult and did not manage her time between study, working and other matters well. In short, she was a poor student.
Ms Kaur told the Tribunal since commencing her cookery and hospitality studies she has learned to manage her time well and is committed to her studies and doing something for herself. The Tribunal accepts this evidence as Ms Kaur’s recent academic record reflects the progress of a genuine student.
Ms Kaur told the Tribunal her plan is to work in hospitality in India and eventually open her own restaurant specialising in Italian and American cuisines. This reflects Ms Kaur’s experience of working part time as a cook in an American themed restaurant called Laurie Dee’s Hamburgers and Frozen Custard in Epping.
It also reflects Mr Singh’s experience in Italy. Mr Singh told the Tribunal when he resided in Italy between 2006 and 2013 he worked in a dairy and a factory, but also in a pizza and pasta shop and is fluent in Italian. Mr Singh is supportive of his wife’s plan to open a restaurant and says he will have an active role in the kitchen and his parents will assist with land and obtaining a bank loan.
Ms Kaur told the Tribunal her parents in law have land in India she and her husband can use to build a restaurant and they have had positive discussions with banks about obtaining a loan to build and open the restaurant. Ms Kaur and Mr Singh’s plans to open a restaurant in India are credible without being entirely convincing in their detail. The Tribunal accepts that Ms Kaur’s courses completed to date and current studies will be of value to these plans which, if successful, could provide a viable and long term income in India for Ms Kaur and Mr Singh. These plans have been supported by Ms Kaur’s part time work in Australia and Mr Singh’s work in Italy in the hospitality industry.
The Tribunal accepts as this is only the second application for a Student visa by Ms Kaur, in the circumstances of her recent academic progression and plans to return to India there is no evidence before the Tribunal that Ms Kaur’s ties in Australia are sufficiently strong to provide incentive for her to remain here or that she is using the Student visa program to circumvent the intentions of Australia’s migration program or for the purposes of maintaining ongoing residence in Australia.
The Tribunal is also satisfied from Ms Kaur’s evidence that she now understands what is necessary to live, study and work successfully in Australia, is studying with an education provider who she has confidence in and is making reasonable recent academic progress.
The Tribunal disclosed to Ms Kaur her movement records since arriving in Australia in accordance with the procedure required by s.359AA of the Act, including advising Ms Kaur how the information was relevant to her review and the consequences of the Tribunal relying on that information. Ms Kaur was offered additional time to consider her PRISMS record before commenting upon it but did not request additional time.
Ms Kaur’s movement records show she has not returned to India since arriving in Australia in July 2013. Ms Kaur told the Tribunal she did not return to India early in her studies because she was struggling with them so much and then the refusal of her visa application in October 2016 caused her great stress causing her to focus on completing as much study as she could prior to returning to India.
Ms Kaur told the Tribunal she is close to her family and talks to her parents every day, including by making video calls. Ms Kaur’s evidence was that her parents in law had, at the time of hearing, been in Australia on a visit for two months.
The Tribunal accepts this evidence and finds Ms Kaur is maintaining her familial relationships in India in a manner consistent with her evidence that she is close to her family and has strong motivation to complete her studies and return to India.
The delegate found Ms Kaur had not completed her Student visa application honestly or correctly. Mr Nikolic submitted that Ms Kaur had provided a former migration agent with all relevant information but the agent had not included that information in Ms Kaur’s application. Ultimately, Ms Kaur is responsible for what is submitted to the Department on her behalf and Ms Kaur bears the consequence if that information was incomplete or inaccurate. The Tribunal accepts that there were defects in Ms Kaur’s application but does not find those defects were so significant as to cause the Tribunal to doubt Ms Kaur’s genuineness as a student.
On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
The delegate found Ms Kaur was in breach of an unspecified condition of her visa by failing to maintain enrolment at the Bachelor level. Mr Nikolic submitted on behalf of Ms Kaur that she had maintained enrolment at the Bachelor level throughout her time in Australia. The Tribunal accepts this submission as Ms Kaur’s PRISMS record indicates Ms Kaur has had five Bachelor of Information Technology enrolments and five Bachelor of Hospitality Management enrolments which appear to cover the period of her time in Australia.
The delegate made the following findings in relation to Mr Singh in the decision letter:
Mr Singh was in Australia from 07/11/2008 to 06/07/2011 (prior to his most recent arrival on 26/07/2013). During this time, Mr Singh, who arrived on a TU573 student visa (which was valid to 09/05/2011), applied for a Protection visa on 24/12/2009. This visa application was Refused on 18/03/2010. Mr Singh’s student visa ceased on 09/05/2011. On 12/06/2011 Mr Singh was granted a Bridging Visa E, at that time Mr Singh declared he would be departing Australia within 2 weeks. On 04/07/2011 Mr Singh attended in Immigration Compliance Counter and presented himself as an unlawful, as his BVE had expired. It was agreed by Mr Singh that he would depart Australia with the next 5 days. He then departed on 06/07/2011. When applying for the student visa to return to Australia in 2013, Ms Kaur advised Immigration in India that her spouse (Mr Singh) was working in Italy. This information was not provided in this application when asked about visits to other countries.
…
It is evident that you have both provided false and misleading information in your application.
Ms Kaur’s evidence and Mr Nikolic’s submissions to the Tribunal were that the delegate’s findings do not relate to her husband and the delegate based their findings on someone else with the same name and birthdate as Ms Kaur’s husband.
The Tribunal inspected Mr Singh’s current and most recently expired passports after satisfying itself that the passports were genuine and were Mr Singh’s. From the stamps in those passports the Tribunal accepts Mr Singh’s evidence that he resided in Italy between 2006 and 2013. The Tribunal also accepts that Mr Singh’s entry into Australia in 2013 is the first time that he has visited Australia.
The Tribunal finds that the findings of the delegate set out in paragraph 35 above were made in error as a result of a case of mistaken identity.
Given the Tribunal’s findings about Ms Kaur and Mr Singh in relation to this consideration the Tribunal is satisfied that the applicants intend to comply with the conditions subject to which their visas are granted as required by cl.500.212(b).
Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?
For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).
Mr Nikolic made submissions toward the end of the hearing in relation to Ms Kaur’s PRISMS and movement records, her academic progress and the purpose of her study. Mr Nikolic in particular addressed whether it could be reasonably asserted that Ms Kaur has only enrolled in short duration inexpensive courses and is using the Student visa program to maintain ongoing residence in Australia.
Ms Kaur made a closing statement that she has maintained enrolment at all times in Australia at the Bachelor level because it was always her intention when studying in Australia to obtain a Bachelor degree. She told the Tribunal starting with lower level studies leading to a Bachelor degree had worked well for her because she had learned to adjust to the Australian education system, manage her time better and was now well placed to be successful in her Bachelor studies. The Tribunal accepts this evidence.
The Tribunal finds these submissions and the evidence from Ms Kaur support the Tribunal’s finding that Ms Kaur is a genuine applicant for stay and study as a student.
Conclusions
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
DECISION
The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the directions that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.212 of Schedule 2 to the Regulations;
and the second named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl.500.311 of Schedule 2 to the Regulations.
Michael Ison
Senior Member

[2018] AATA 5011

16 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction