Kumar (Migration)

[2021] AATA 3332

Kumar (Migration) [2021] AATA 3332 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajesh Kumar

CASE NUMBER:  1921348

HOME AFFAIRS REFERENCE(S):          BCC2019/2618685

MEMBER:Noelle Hossen

DATE:20 January 2021

PLACE OF DECISION:  Perth

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

Statement made on 20 January 2021 at 3:21pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-appearance before the Tribunal – application reinstated – genuine temporary entrant – Direction No.69 – personal ties to home country – reasons for coming to Australia – value of the course – circumstances in Australia – travel and visa history – length of stay in Australia – significant change in course direction – unsatisfactory course progression – 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 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 20 May 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 delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. The Tribunal invited the applicant to provide further information pursuant to Section 359(2) on the 10 February 2020.

5. The applicant filed a Response including an MR17 Form on the 11 February 2020.

6. The matter was listed for a hearing, but the applicant sought an adjournment and this was granted on the 20 July 2020.

7. The matter was subsequently listed for a hearing on the 17 September 2020.The applicant did not attend the hearing and could not be contacted so his application was dismissed for non-appearance.

8. The applicant sought a reinstatement of the hearing on the 23 September 2020.

9. The Tribunal wrote to the applicant on the 6 October 2020 seeking an explanation for his non-appearance on the 17 September 2020.

10. The applicant said that he was stressed and panicked and could not attend as he had found out that his son had contracted COVID in India.

11. The Tribunal reinstated his application and it was listed for a hearing on the 19 November 2020.

12. The applicant appeared before the Tribunal on 19 November 2020 to give evidence and present arguments.

13. Prior to the hearing the applicant sent to the Tribunal:

    ·The Decision Record of the delegate;

    ·Confirmation of Enrolment for a Diploma of Sport Development, commencing 1 July 2019, to be completed on 19 February 2021 and a further confirmation of Enrolment for an Advanced Diploma of Hospitality and Management

    ·A response to the Request for Student Visa Information form.

14. The Tribunal has also had regard to the Department file.

15. The Tribunal had obtained a copy of his PRISMS record and it was sent to him by mail on the 20 November 2020.The Tribunal made sure that the applicant knew at the hearing that the Tribunal intended to rely on the contents of the PRISMS record.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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 applicant for entry and stay as a student.

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

18. 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?

19. 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.

20. 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 applicant’s circumstances in his home country

1. Prior to coming to Australia, the applicant had completed a Bachelor of Arts in India in July 2000.  He had not had any work experience.  The applicant’s wife and sons live in India. He gave evidence at the hearing that his wife did not like living in Australia and that she had once travelled to Australia for 2 to 3 months and had returned to live in India.  He is in regular contact with them.

2. He confirmed that he did not attend the hearing in September 2020 as he said that his 15-year-old son had contracted Covid. His condition was not good. His wife had called him and was very upset.

3. The applicant’s family have an interest in land, worth approximately $200,000.

4. He said that his family own land and that they have already divided it so that he has a share. He said that they own 48 dairy cows.

5. The applicant is not subject to national service and there is no political or civil unrest or economic reasons that would be cause for the applicant not to return to India, or provide an incentive for him not to return, and the Tribunal gives these factors some weight in his favour.

6. The Tribunal places some weight in the applicant’s favour as he does not have any family living in Australia and the fact that his family lives in India provides a significant incentive for him to return to live in India.

The reasons the applicant came to Australia, his course of study in Australia and the value of his study to his future

1. The applicant arrived in Australia on the 3rd October 2008. From that time he has studied and completed the following courses as follows:

   2.2009-9.2010            Diploma of Hospitality Management

   12.2010-7.2012          Advanced Diploma of Business Management

   1.2012-6.2012            Certificate IV in Work Health and Safety

   8.2012 – 8.2013         Diploma of Hospitality

   7.2013-11.2014          Advanced Diploma of Marketing

2. At the time that he completed his form MR17 he told the Tribunal that he had started a course in Diploma of Sports Management.

3. He was studying a Diploma of Sports Management, having enrolled in that course in July 2019, when his work visa expired. He told the Tribunal, and this was confirmed by his PRISMS record that he was no longer studying the Course. He said that the college had told him that they were not taking international students.  He confirmed his evidence in writing that the college had terminated his enrolment in the course on the 20 November 2020. He did not provide any evidence from the college to the Tribunal. He told the Tribunal that it could make its own enquiries which is not a function that the Tribunal would undertake. 

4. The applicant said in his Genuine Temporary Entrant Statement to the Department that his parents pressured him into completing a hospitality qualification, with a major in cookery, and that is why he completed that course when he first came to Australia.

5. He says that it was from being a cook that he learnt about the importance of fitness and eating properly, and he understood that there is a scarcity of professionals in this industry. He would like to fill that gap and become a pioneer in his country. he is of the view that his previous education and work experience has taught him a lot about the core duties of managing a team, conducting promotional activities and developing leadership and organisational skills.

6. The Tribunal accepts that young students may struggle being away from home and attempting tertiary studies in a foreign language.  The Tribunal also accepts that young students do not always know what they really want to study when they leave school and may have a change in direction.  Changes to courses and course providers, and some failures in units, are reasonable in those circumstances.  However, the applicant is no longer young. The applicant was 42 years of age at the time of the hearing and had been living in Australia for 12 years.

7. The change from a Bachelor of Arts, to hospitality to business to sports management occurred between 2000 and 2019 – so over a period of 19 years.  The Tribunal does not accept that this illustrates a young person unsure of their future goals in life when they commence studying. The Tribunal cannot give any weight to the changes in course direction being reasonable.

8. The applicant has told the Tribunal that after completion of this course he will return to India and look for a job in a middle management position in a sport authority.  He expects a salary of approximately $25,000, however he has not indicated how he knows that is what he can expect.

9. In his genuine temporary entrance criteria, as recounted by the delegate in the Decision Record, the applicant told the department that he hoped to gain a place in a governmental sports Institute in India after he completes his course. He will aspire to raise awareness about the benefits of sport for people of all ages, especially the elderly. Ultimately, his goal is to combine Sport with elderly fitness promotion, making a new industry. He would like to build elderly communities and Setup at service stations for the elderly to assist them in accessing care even in their own homes and with organised activities to replace present elderly care centres.

10. The evidence as set out in the preceding paragraph is no longer relevant as the applicant is now saying that he wishes to do an Advanced Diploma in Hospitality and Management as he has provided a Certificate of Confirmation of Enrolment to commence the Course on the 18 January 2021.

11. The applicant obtained the current Certificate of Enrolment for the course on the 10 November 2020 and sent it to the Tribunal on the day of the hearing. He is due to commence on the 18^th of January 2021 and complete it on the 26 November 2021.

12. Having carefully considered the applicant’s oral and written testimony regarding his career aspirations, the applicant’s evidence appeared to be tailored to fit his current course selection in Australia. The Tribunal considers that if the applicant did have a plan to pursue a career outside of Australia, then he could have already left Australia to implement his plan.

13. The Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing evidence in Australia.

The applicant’s circumstances in Australia

1. The applicant has maintained relatively consistent employment while being in Australia.  He has worked in a restaurant from November 2008, very soon after he arrived in Australia, to September 2012, and in a café from June 2015 to July 2019.

2. During that work, he earnt $24,000 per year at the restaurant and $54,000 per year at the café.  This is in comparison to his annual living expenses of $17,520.

3. There is no evidence that the applicant has entered a relationship of concern, and there is no evidence that he is in a relationship at all in Australia.

4. There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

The applicant’s travel and visa history

1. The applicant arrived in Australia in 2008 with a Student visa.  he maintained that Student visa until July 2017, when he was granted a work visa, which lasted until July 2019.  He applied for the Student visa, the refusal of which is the subject for this review.

2. The applicant has returned to India for one month at a time in 2011, 2013, 2014, 2015 and 2017. There are no other outstanding visa applications yet to be finally determined.  There is no evidence that any of the applicant’s family have an immigration or visa history of concern.  The applicant has not travelled to any other country and has therefore not had a visa refused elsewhere or considered for cancelation anywhere. The Tribunal places some weight in favour of the applicant’s case for those facts.

3. The applicant completed a Bachelor level course before coming to Australia, however has only completed, and, on his oral evidence to the Tribunal, only aims to complete, lower level course.  The applicant has not progressed in either level of education or within the one area in the 12 years he has been in Australia.  The applicant applied for the Student visa, the refusal of which is subject to this review while his work Visa (457 Visa). expired. Pursuant to that Visa he was a cook.

4. Given the length of stay in Australia as a temporary entrant, the financial benefits to him of remaining in Australia and the significant change in direction in course with the lack of any academic or course progression, the Tribunal is  concerned that the applicant is using the student visa programme and associated bridging visas to maintain ongoing residence in Australia.

5. If the visa is granted that is the subject of the review, with a prospective end date of November 2021, the applicant will have been onshore as a temporary visa holder for more than 13 years. In the Tribunal’s view his academic history is less than satisfactory. He has not held the student visa for the whole of the 12 years. He held a temporary work visa, and this was considered.

Any other relevant matters

1. The Tribunal is satisfied that there are no other relevant matters for consideration in relation to this applicant.

Whether the applicant is a minor

1. The applicant is not a minor and therefore the intentions of a parent, legal guardian or spouse of the applicant are not a relevant factor.

2. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

3. 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.

   DECISION

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

   Noelle Hossen
   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.