Khosa (Migration)

Khosa (Migration) [2020] AATA 6170 (11 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Baljeet Kaur Khosa
Mr Mandeep Singh Khosa
Miss Ekamjeet Kaur Khosa
CASE NUMBER:  1919721
HOME AFFAIRS REFERENCE(S):          BCC2019/2419873
MEMBER:Elizabeth Tueno
DATE:11 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 11 August 2020 at 11:48am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Direction No.69 – reasons for not studying in home country – personal ties to home country – economic circumstances – ties to Australia – value of the course – immigration history – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 7 May 2019. 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.
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). The delegate was not satisfied that the information provided by the applicant demonstrated that she met the temporary entrant requirements for the grant of a student visa.
The applicants appeared before the Tribunal on 8 July 2020 by telephone due to the Covid-19 restrictions to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 the applicant intends genuinely to stay in Australia temporarily.
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, 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.
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.
The Tribunal has had regard to the applicant’s oral evidence given at the hearing, the migration agent’s submissions, documents provided by the applicants prior to the hearing and also documents contained in the Department’s file.
The applicant is a 30 year old married woman from India. She first came to Australia in October 2018 on a visitor visa with her husband and two children. The purpose of this trip was to attend the wedding of her husband’s sister. The returned to India in January 2019 before travelling to Australia again on 16 March 2019. Their visitor visas were still valid, and they entered the country on them. The applicant stated that the purpose of this travel was to attend her sister in law’s birthday celebrations. The applicant came back to Australia this time with her husband and youngest daughter. In April 2019, the applicant enrolled in the following two courses:
· A Diploma of Information Technology Networking, which commenced on 1 July 2019 and ended on 28 June 2020. The applicant has now completed this course.
· An Advanced Diploma of Telecommunications Networking Engineering, which commenced on 29 June 2020 and will end on 27 June 2021 (“the proposed courses”)
CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY
The Tribunal notes that prior to coming to Australia, the applicant had completed a Bachelor of Arts in November 2012 and a Bachelor of Education in May 2017 at Punjab University. She had also completed a Post Graduate Diploma in Computer Applications in March 2014. In her s.359(2) questionnaire responses, the applicant stated that she had tried to find a job in India and had sat many tests in order to do so. After coming to Australia, she compared the course options and education systems in Australia and in India and decided that she would rather study in Australia because of the “technical specifications, skills and instrumentations required” for carrying out the proposed courses. She believes studying in Australia will help upgrade her knowledge and give her a better future.
The applicant said in her genuine temporary entrant statement (“GTE statement”) that she did look for colleges in India with similar courses but was faced with limited colleges of good reputation with the equivalent international level of teaching. The colleges at this level that she did find had “stiff competition” to obtain a place. There were also private colleges, but they charges high fees for the courses and there is a question over the quality of education. It was her sister in law who suggested that she study the proposed courses in Australia.
The Tribunal has considered the applicant’s reasons for not studying the proposed courses in her home country and does not consider she has sound reasons for not doing so. The applicant appears to be an intelligent woman who has tertiary qualifications and experience. She also has completed the post graduate diploma in computer applications. There is no evidence that she experienced any difficulty in obtaining a place in the post graduate diploma in computer applications. Nor is there any evidence that this provided her with sub-par level of teaching and knowledge. The applicant does not appear to have even attempted to gain a place in the colleges in her home country that have she mentioned having the equivalent level of teaching standards. Accordingly, the Tribunal finds that the applicant does not have sound reasons for not studying the proposed courses (or similar courses) in her home country.
The applicant’s father, mother and two brothers all live in India. The Tribunal takes this into account when considering her personal ties to her home country. In particular, the Tribunal places weight in favour of the applicant that her eldest daughter has remained in India living with her parents and is attending school there. She stated that she contacts them every day by phone calls and chats via WhatsApp. Her eldest daughter is not included in the application. She said in her GTE statement that it is her responsibility to return to India to look after her parents and parents in law.
However, the applicant has come to Australia with her husband and youngest daughter. Since arriving in Australia, she has given birth to a son on 11 May 2020. Furthermore, her eldest daughter is in fact has spent time in Australia since her parents came here, having visited with the applicant’s father in law in December 2019. This suggests that having family in India is not in fact a significant tie to India, as her family is able to visit the applicant, her husband and their children here in Australia.
As to the applicant’s economic circumstances, the Tribunal notes that she did not have employment in India prior to coming to Australia. The applicant and her family are being financially supported by her brother and sister in law who live in Australia. This includes their living expenses, her tuition fees and other expenses. Neither the applicant nor her husband have worked in Australia. The applicant provided documentary evidence that in April 2019, her father and father in law’s bank accounts. She also provided evidence of her father in law’s ownership of agricultural land which generates an income as well as a letter dated 3 May 2018 which states that the applicant’s father is a permanent customer of the letter writer and brings his crops to their commission agent shop. Taking these matters into account, the Tribunal is satisfied that the applicant’s economic circumstances would not be a significant reason not to return to India.
The applicant stated in her questionnaire that she has no concerns about military service commitments in India and she also does not have concerns about any political or civil unrest in India. The Tribunal takes this into account and considers that these matters would not induce the applicant and her family to travel to Australia and use the student visa to remain here indefinitely.
POTENTIAL CIRCUMSTANCES IN AUSTRALIA
As noted above, the applicant first came to Australia in October 2018 on a visitor visa with her husband and two children. The purpose of this trip was to attend the wedding of her husband’s sister. The returned to India in January 2019 before travelling to Australia again on 16 March 2019. Their visitor visas were still valid, and they entered the country on them. The applicant stated that the purpose of this travel was to attend her sister in law’s birthday celebrations. The applicant came back to Australia this time with her husband and youngest daughter, although her eldest daughter visited her parents late last year. The applicant has given birth to a son recently in May 2020.
The applicant together with her husband and two children live with her sister in law’s family here in Australia and do not pay any rent. Her sister in law (her husband’s sister) is married with one child and has lived in Australia for the last 10 years. She is now an Australian citizen. Other than her sister in law’s family, the applicant does not have any other extended family in Australia.
Neither the applicant nor her husband are employed in Australia. While the applicant attends class, her husband looks after their two children. She said that she has no other ties to the community or is a member of any organisation in Australia. However, she also said this also the case for her in India.
In her GTE statement, the applicant explained why it is she is living in Perth. She explained that it is one of the most beautiful cities in Australia and has a “world class education system”. It has a good lifestyle there with the weather there making it a good place to live. She said that the weather is good for enjoying water activities such as a swimming, water sports, suffering or relaxing on the beach. She said, “there is no place better than Perth”. She then also provided random facts about Western Australia, such as that it is bigger than Western Europe, borders with Northern Territory and South Australia, is surrounded by the Southern and Indian oceans and accounts for 33% of the land mass in Australia. She also noted that that Perth has a population of over 2.14 people and is the fourth largest city population wise in Australia.
All of these facts and figures simply demonstrate that the applicant is capable of using the internet to look up facts about where she is currently staying. What the applicant omitted in all of her writings about Perth is that it is where her sister in law has made her home along with her family. It Perth that she has a connection to Australia and a reason for living there.
The Tribunal considers that the applicant has demonstrated ties to Australia and that it is her family that presents as a strong incentive to remain here. If the applicant was granted a student visa, there is nothing to prevent her from making an application in due course for her eldest daughter to join her family here in Australia and attend school here.
VALUE OF THE COURSE
As noted above, prior to coming to Australia the applicant had completed a Bachelor of Arts in November 2012 and a Bachelor of Education in May 2017 at Punjab University. She had also completed a Post Graduate Diploma in Computer Applications in March 2014. She stated that the reason she was not studying a Masters course in Australia was because she did not feel confident to do so without having completed a Bachelor of Information Technology. She said this was because, despite having done the computer applications course in India, there is a difference between education in India and in Australia. The Tribunal has taken this into consideration, however, it finds that the proposed courses are not at a level consistent with the applicant’s current level of education.
The applicant states that it is her dream to obtain a globally recognised qualification in information technology and telecommunications so that she get a good job in India. She said the proposed courses cover many essential skills and knowledge required for jobs such as software development and design, web application development, computer networking, network security and IT project management. The proposed courses would mean she could work as an independent specialist or as part of a team. In her GTE statement, she said she believes the proposed courses will give her all the ingredients required to become a successful professional and she will look for a “reputable job” when she returns to India.
As to remuneration she can expect to earn using qualifications from the proposed courses, the applicant did not provide any details of the remuneration she can expect to earn.
The Tribunal considers that the applicant’s plan for the future is rather vague and she does not appear to have any specific career or job in mind other than a job working in the field of information technology. Having already completed the post graduate diploma in computer applications, the applicant did not obtain any employment. Nor did she obtain any employment after completing the Bachelor of Arts or the Bachelor Education. This does not engender much hope that the applicant will obtain employment even with the proposed courses. Accordingly, the Tribunal finds that while the proposed courses are relevant to her stated intention to work in the information technology field in the future, it is unlikely that the proposed courses will assist the applicant in obtaining employment or improving her employment prospects in her home country. The proposed course are not relevant to her past employment since she has never been employed. And in relation to remuneration, there is simply no evidence before the Tribunal about what remuneration she can expect to earn in her home country or third country compared her current qualifications and also compared to what she could earn in Australia.
IMMIGRATION HISTORY
The applicant has stated in her questionnaire that she has no other Australian visa applications pending. She also stated that she has never been refused a visa or had a visa cancelled by another country. There is no evidence to suggest otherwise.
While the applicant is not lawfully prevented from making an application for a student visa onshore after travelling here on a student visa, the Tribunal can take the surrounding circumstances into account when considering her immigration history. The applicant appears to have entered Australia twice on the visitor visa and on neither occasion was it her intention to come here for the purpose of study. Rather, it was to visit family and attend family events. It was only after she had been here over a month after returning March 2019 that she enrolled in the proposed courses. The Tribunal considers that this an indication that the applicant is using the student visa to maintain ongoing residence in Australia. Furthermore, she has enrolled in a two year long courses at the vocational level whereas she has previously studied at higher education at university, including a post graduate diploma in computer applications. The Tribunal takes into account the applicant’s explanation for this. She states that she had considered studying a Masters course in Australia but was not confident in doing so as she had not completed a Bachelor in Information Technology. The Tribunal considers that the applicant has spent at least seven years studying at the tertiary level and would be well equipped to study at the very least a Bachelor level or even higher.
OTHER MATTERS
There were no other matters raised by the applicant for consideration.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily and therefore the applicant does not meet cl.500.212(a).
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. Accordingly, the decision under review must be affirmed.
It follows that the Tribunal also affirms the delegate’s decisions in relation to the second and third named applicants.
DECISION
The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Elizabeth Tueno
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.

[2020] AATA 6170

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction