Kharod (Migration)

[2020] AATA 3576

Kharod (Migration) [2020] AATA 3576 (29 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lakhveer Singh Kharod

CASE NUMBER:  1909786

HOME AFFAIRS REFERENCE(S):          BCC2018/6186432

MEMBER:Peter Booth

DATE:29 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 29 July 2020 at 9:33am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – current level of education – time spent onshore – changed in purpose of stay – benefit of doubt – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 April 2019 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 15 January 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal by telephone on 21 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

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

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 12 April 2019 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

12. The applicant confirmed that he is currently enrolled in a Diploma of Building and Construction which commenced on 28 March 2020 and which is scheduled to be completed on 20 March 2021. The applicant had provided a confirmation of enrolment document in that regard to the Tribunal.

13. The applicant had provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). The applicant confirmed that he did not want to add to or vary his responses in that document.

14. The request for information and the applicant’s responses, in summary, were as follows.

15. The applicant was born on 13 November 1993 and prior to arriving in Australia completed a Diploma in Electronics and Communication between August 2009 and August 2012 and a “Bachelor of Technology Electronic” between September 2012 and September 2015. Prior to arriving in Australia, the applicant was employed as a “service engineer” between February 2018 and November 2018 and derived AU$6,200 annually from that employment.

16. The applicant arrived in Australia on 23 December 2018 and since that time has not returned to his home country.

17. The application for the student visa in question was made in January 2019. The applicant stated that he arrived in Australia as the holder of a “Visitor Subclass 600” visa which was granted in November 2018 and which was valid for one year.

18. The applicant stated that he completed a Certificate III in Painting and Decorating between January 2019 and March 2020, and that he was currently studying a Diploma of Building and Construction between March 2020 and March 2021.

19. As to the availability of similar courses in his home country, the applicant stated: “the courses in the applicant’s home country are more theory based and lack the practical aspect of working in the building construction stage”.

20. The applicant stated that he had been continuously enrolled in courses of study whilst in Australia.

21. The applicant did not disclose any employment history in Australia.

22. The applicant stated that his parents reside in India, one sister resides in Canada and one sister resides in Australia.

23. The applicant disclosed assets in India comprising a house, bank deposits and a “motorbike”. He estimated the value of those assets to be approximately AU$107,000.

24. As to his employment plans, the applicant stated: “after completing his diploma, the applicant will be looking at entry-level roles in the construction sector. In the long run, the applicant was to pursue the career of project manager in some of the prestigious construction businesses back home”.

    As to his expected future remuneration, the applicant stated: “The applicant expects to work as a project manager and expects a salary of INR 1200000 (AUD 24000) to INR 1500000 (AUD 30000) per annum”.

25. The Tribunal proceeded to ask the applicant some questions. The substance of the questions and the applicant’s responses were as follows. The applicant arrived as the holder of a tourist visa which was valid until 23 March 2019 for the purposes of that visit. He said that his purpose in travelling to Australia was “to see my sister”. In answer to how long he was staying, he said “three months”. In answer to when he applied to enrolment courses, he said “about one month after arriving”. He confirmed that the student visa application was made on 15 January 2019. He also said that the courses he intended studying at that time were a vocational course in painting and decorating and a Diploma of Construction Management.

26. When asked why he changed his intentions in travelling to Australia, he said “I realise the study here is top quality and I believe focuses on the practical rather than theoretical”. He did not elaborate. When asked why he changed his mind as to the purpose of his visit, he said “I just want to study here, I want to start a career in the construction industry”. He did not elaborate.

27. When asked when he resigned his employment in India, he said “a few weeks before I arrived here”. When asked why he resigned his employment, he said “I want to start a career in the construction industry, my dad has a painting business in India”. He did not elaborate. When the question was repeated, he said “I came here for a three-month holiday”. When the Tribunal asked again why the applicant had resigned from his job, he said “I resigned because I want to have my father’s business”. The applicant did not elaborate.

28. The applicant said he is not currently working in Australia and added that “a condition of the visa prevents work”.

29. He confirmed that he has no assets in India in his own name.

30. The Tribunal observed that in his responses to the request for information, he had stated that he wanted to work as a project manager in the construction business and there was no mention of his father’s painting and decorating business. What asked why he did not mention his father’s business, he said “I want to gain experience”. He did not elaborate.

31. The applicant confirmed that he is not married. When invited to add anything further to his application for review, he said “I’m a genuine student”. He did not elaborate.

32. The applicant’s representative made short broad submissions to the effect that his client is enrolled in study and that he could have extended his tourist visa.

33. The applicant also provided a variety of documents to the Tribunal as follows. A certificate of completion in respect of the Certificate III in Painting and Decorating, a statement of attainment in respect of one unit entitled “prepare to work safely in the construction industry”, several confirmation of enrolment documents, bank account statements, copies of passports of other persons, confirmation of current health insurance and payslips. Neither the applicant nor the representative referred to these documents. Nonetheless the Tribunal has taken into account and given them appropriate weight.

34. The applicant’s migration agent also provided a written submission. The applicant’s representative did not refer to this undated document, however it has been taken into account and given appropriate weight.

35. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand, the applicant completed higher education courses in his home country, and the applicant has been in Australia since 23 December 2018 and has not returned to his home country. He arrived as the holder of tourist visa and quickly changed his intentions from being a tourist to being a student. However, in the applicant’s favour, he has completed one vocational course in painting and decorating and is currently studying a Diploma of Construction. This is said to enable him to participate in his father’s painting business in India, a matter not disclosed in his responses to a request for information. Further, the applicant considers that he will complete his course of study within a short period of time. It remains to be seen whether he does complete his course in March 2021, a matter about which there may be some reasonable doubt.

36. A change in intentions from being a tourist to being a student, whilst allowed as a matter of Australian law, is not an irrelevant factor when considering whether an applicant is a genuine temporary entrant. However, in this matter, the applicant has relatively quickly changed his intentions and is embarking on courses which appear to have some relevance to conducting a painting business in India. Whilst the applicant has changed his career path, apparently this is not unusual, although it is clearly a factor to be taken into account in considering whether the applicant is a genuine attempt entrant. The applicant has not been in Australia for an extended period of time, has completed one vocational course and is currently studying another, and expects his study to be concluded by March 2021.

37. However, on balance, and not without significant misgivings, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant.

38. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.500.212(a).

39. 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)).

40. 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.

41. 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

42. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Peter Booth
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton
    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia. A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance.

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.