Kaur (Migration)

[2018] AATA 4560

Kaur (Migration) [2018] AATA 4560 (24 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kawaljeet Kaur

CASE NUMBER:  1713075

HOME AFFAIRS REFERENCE(S):           BCC2017/913085

MEMBER:Stephen Conwell

DATE:24 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 August 2018 at 6:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

CASES
Saini & Anor v Minister for Immigration & Anor [2016] FCA 858

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 15 June 2017 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 8 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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 the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 10 May 2018 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

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

6. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   d.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   e.   ‘Direction 69’ or ‘the Direction’ refer 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.

   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.

   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 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. According to the delegate’s decision, the applicant provided a GTE Statement to the Department (Dept. fol. 30) that sought to explain her study choices at that time:

    ·       she arrived in Australia to enrol in English Language programs and in a Master of Information Technology at the University of Tasmania. Her choice of study was in accordance with her parents’ wishes for her to become a computer programmer;

    ·       the applicant completed the English language program with some effort but struggled with her Master’s studies and was critical of the lack of support available at the University;

    ·       she decided to “change the course and follow my in instinct of opting [for] a course [that] I was keenly interested in which was Hospitality.”

12. The applicant also provided the Department with the following documents:

    a.   the applicant’s PTE test results of 5 December 2016 ;

    b.   affidavit of Support from her grandfather, Darshan Singh dated 15/2/2017;

    c.   Income Certificate dated 12/12 2016 noting that the applicant’s grandfather, Darshan Singh is the owner of certain agricultural lands, from which he derives a net annual income of approximately Rs 13,27,375 (13 Lakh, 27 thousand and 375 Indian Rupees);

    d.   Term Deposits held at Central Bank of India in the name of the applicant’s grandfather, Darshan Singh;

    e.   the applicant’s marriage certificate dated 17/10/2016;

    f.      copies of the bio data pages from the applicant’s and her husband’s passports;

    g.   COEs for the applicant’s enrolment in:

    i.Certificate IV in Commercial Cookery (21/01/2017 – 18/06/2017);

    ii.Diploma of Hospitality Management (17/07/2017 – 09/12/2017);

    iii.Bachelor of Business (19/03/2018 – 31/12/2019).

    h.   Academic Transcripts and certificates of the applicant’s Master of Business Administration from Punjabi University;

    i.      Transfer Certificate of Overseas Student Health Cover issued on 06/03/2017.

13. Prior to the hearing the applicant submitted the following documents/evidence to the Tribunal by email of 3 May 2018:

    a.   the applicant’s Genuine Temporary Entrant criterion (GTE) Statement of 3 May 2018;

    b.   COEs as evidence of enrolment in:

    i.Advanced Diploma of Hospitality management (19/03/2018 – 23/11/2018);

    ii.Bachelor of Tourism and Hospitality Management (12/11/2018 – 08/11/2019).

    c.   Qualifications attained / academic transcripts:

    i.Certificate III in Commercial Cookery – completed 25.07 2017;

    ii.Certificate IV in Commercial Cookery – completed 25.07 2017;

    iii.Diploma of Hospitality Management – completed 19.02 2018.

    d.   Qualifications attained / academic transcripts from India:

    i.Bachelor of Arts (General), extract of academic transcript – 24.09.2013;

    ii.Master of Business Administration and academic transcripts – 8.08.2011.

    e.   Evidence regarding cancelled enrolments

    i.email of 26.04.2018 from University of Tasmania to the applicant, confirming no outstanding fees;

    ii.email correspondence between The Applicant and Stott’s College confirming payment of all course fees.

    f.      Evidence that the applicant’s hospitality studies are substantially different from her previous studies – Bachelor of Tourism and Hospitality Management course handbook.

    Delegate’s decision

14. The delegate’ decision notes that the applicant’s enrolment in her initial Master’s program was cancelled on 16 September 2015 for “non-payment of fees”.  The delegate also notes that the applicant’s later enrolment in the Certificate III in Commercial Cookery was cancelled on 13 December 2016 for the same reason. The Tribunal has considered the evidence in this regard and is satisfied that the applicant has paid her course fees at all appropriate times.

15. The delegate notes with concern the applicant’s failure to maintain enrolment in, or complete her initial intended studies.  The applicant claims that she chose to study IT in a foreign country at the wishes of her parents. The Tribunal is not persuaded by the applicant’s explanation.  The fact that the applicant applied to study IT in a foreign country would have required a lot of pre-meditation, planning and no doubt, discussion with parents, family members and mentors.  Moreover the applicant was not a callow youth at the time of making such decisions; she was a mature, experienced university graduate with two degrees to her name. 

16. The Tribunal does not accept that the applicant was merely a passive agent of her parents’ wish that she obtain IT qualifications overseas. She already had attained two highly regarded qualifications in India, which by themselves would make any parent proud and which already put her in the upper echelons of qualified professionals in India, and eminently employable in India and overseas.  In her oral evidence the applicant stated that it was her ex-husband’s wish to come to Australia however as he had only completed high school, it was decided that she would be the primary applicant for a Student visa.

17. Having spent several years studying in the university sector in India, the applicant was better prepared than many others for the rigours and challenges of university life, albeit in a foreign country. Having applied to the Australian government for a Student visa, the applicant is assumed to have not just the financial means to support her studies but also the experience, qualifications and the aptitude to engage in those studies at the level at which her visa had been granted.

18. If the applicant was experiencing difficulties in the learning environment at the University of Tasmania and the IT course, as she claims, she might have pursued another master’s course, perhaps even at another university.  There is no evidence that she did so.

19. The Tribunal accepts that the applicant was at the same time experiencing marital difficulties, which ultimately led to divorce proceedings and to her subsequent re-marriage in Australia in 2016.  However there is no evidence that she consulted the University or sought its assistance in this regard.  Nor is there evidence that she sought medical attention or counselling with respect to this personal issue.

20. It was also open to the applicant to consider deferring her studies and returning to India to be with her family during this difficult period in her life. There is no evidence that the applicant discussed deferral of studies with the university and the applicant did not return home to India at this time.

21. The delegate expressed concern at the applicant’s significant change of enrolment from a Master of Information Technology (IT) to Hospitality/Business studies, upon her arrival in Australia.  Direction 69 contemplates that Student visa holders may change their minds and therefore their study options relating to career and academic objectives. However the Tribunal finds that the applicant’s switch from pursuing studies at a master’s level to the hospitality stream, commencing at a VET level, to be so significant a change of heart that it raises serious concerns about the genuineness of her intentions.

22. The Tribunal’s concerns as to the genuineness of the applicant’s intentions arise from the lack of evidence regarding the applicant’s claims of having a long-standing passion for cooking and hospitality; indeed there is nothing in her earlier academic achievements or work history to indicate such a deeply-held interest.  At hearing the applicant stated that prior to coming to Australia she had worked with her father in the banking sector.  This is consistent with her master’s qualification; it does not support her claim to have a long-standing desire to pursue a career in hospitality.

23. At the time of her initial visa application, the applicant was already an experienced university graduate with a bachelor’s and master’s degree.  Her visa was granted on the basis of her claim that she wished to study IT at master’s level.  The Tribunal does not find it plausible that a person who has dedicated several year of study to attain a master’s degree, would, within a short time of her arrival in the country (to pursue further studies at a commensurate level), experience an epiphany with respect to a passion in cooking which she claims to have always had and which persuaded her to pursue a new direction in hospitality.

24. In her GTE Statement to the Tribunal she states, “I approached the education consultants for further advice regarding my studies.  Acting on their advice, I decided to lower my study level to Diploma leading to Bachelor.” The Tribunal is not persuaded, on the evidence, that the applicant’s enrolment in hospitality studies is based upon a long-held, genuine desire to pursue a career in this sector.

25. The delegate also observed that enrolment at the time of her visa application led to a Bachelor of Business which appeared to be a “regression in studies” given that the applicant had already attained a Master of Business Management before her arrival in Australia.  According to her representative’s submission, the applicant, “has taken those concerns on board and selected a more appropriate course to complete her studies in Australia.”

26. On the evidence, the applicant’s current course selection appears to be in response to a concern expressed by the Department when assessing her Student visa application.  The Tribunal is not persuaded that the applicant’s change of enrolment from a Bachelor of Business to a Bachelor of Tourism and Hospitality is motivated by a genuine career aspiration for the hospitality sector, rather it appears to be a response to the delegate’s comments in the course of the visa refusal, in order to ‘strengthen’ her application for a Student visa. 

    Circumstances in home country

27. According to the applicant’ GTE Statement and her representative’s submission:

    a.   the applicant’s family and that of her husband all live in India; the applicant’s father is a retired bank manager and her mother a housewife.  The applicant has 2 sisters who are also in India.

    b.   the applicant and her husband don’t wish “to disconnect from our extended family.  We acknowledge that we have applied for PR in Australia, but if this application is not successful we need a plan for when we return to India.”

    c.   when the applicant returns to India she intends to embark upon a career in hospitality with the assistance of her husband.

28. The Tribunal accepts that the applicant’s and her husband both have strong family ties to their home country. It also accepts that both families are at least “comfortably well off”.

29. The Tribunal accepts the attractions of family and parents are a matter of consequence. The Tribunal notes these attractions have not been sufficient to date to dictate the return of the applicant to her home country, when she was experiencing the difficulties of her marriage break-up, nor upon completion of her Diploma of Hospitality Management in February 2018.

30. The Tribunal considers that objectively the applicant had sufficient skills, knowledge and qualifications upon completing her diploma in February 2018 to confidently embark upon the hospitality career she claims to desire, either in India, or elsewhere. Her Diploma in Hospitality Management prepared her to run and operate a hospitality establishment such as a restaurant.  This practical qualification complement the high level managerial, organisational and business strategy skills she had acquired at a master’s level in the Master of Business Management degree. 

31. The Tribunal is not satisfied the applicant’s personal ties to India serve as a significant incentive to return to the home country. If they were sufficient incentives, the Tribunal finds that the applicant would have returned to India upon completing her diploma in hospitality.

    Potential circumstances in Australia

32. In evidence, the applicant advised that she divorced her first husband and provided a marriage certificate to the Department as evidence of her re-marriage in Australia in October 2016. The applicant and her husband currently reside in Queensland – she is in Brisbane, completing her studies whilst her husband lives and works in Townsville.

33. The applicant confirmed that she has applied for permanent residence (as a secondary applicant to her husband), however they have maintained their own visa pathways.  In her GTE Statement she states that, “if this application is not successful we need a plan for when we return to India.”  This demonstrates that the applicant has a desire to maintain residence in Australia.

34. The Tribunal finds a marked inconsistency in the applicant being a secondary applicant for a permanent visa on the one hand and her evidence to the Tribunal that she has genuine intention to complete her hospitality studies to bachelor level and then return to India to embark upon a career in that sector.

35. In considering the significance of the application for permanent residency, the Tribunal has taken into account the authority in Saini & Anor v Minister for Immigration & Anor [2016] FCA 858 in which the Court held that if there is a settled intention, at the time of decision, later to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”.

36. The Tribunal finds that by being a secondary applicant for a permanent visa, the applicant has declared a settled intention to secure permanent residence in Australia and that this weighs heavily against the applicant in its decision on the matter under review.

37. The Tribunal is inclined to the view the applicant is using the Student visa program to circumvent the intentions of the migration program and maintain ongoing residence.

38. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent him from returning to India and the Tribunal makes no findings against the applicant based on:

    a.   any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    b.   circumstances in the home country relative to Australia or any other country;  or

    c.   the applicant’s circumstances in the home country relative to others in that country.

39. Having weighed the applicant's circumstances in accordance with the specified matters in Direction 69, and considered all the evidence provided, including the matters above, the Tribunal is not persuaded the applicant has a genuine intention to stay temporarily in Australia. It finds her study path since arriving in Australia on a higher education visa and her academic progression, are not indicative of a genuine student intending to progress academically, and concludes that her study pathways are instead motivated by an intention to extend her residency in Australia.

40. The Tribunal also finds that by being a secondary applicant for a permanent visa, the applicant has made clear her intention that she is seeking to remain permanently in Australia.

1. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student who intends genuinely to stay in Australia temporarily. Accordingly, the Tribunal finds the applicant does not meet cl. 500.212 (a).

2. 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.  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.

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

   DECISION

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

   Stephen Conwell
   Member