Kundi (Migration)

[2020] AATA 5233

Kundi (Migration) [2020] AATA 5233 (20 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Gurpreet Singh Kundi Ms Jaspreet Kaur Kundi Mr Prambel Singh Kundi

CASE NUMBER:  1830741

HOME AFFAIRS REFERENCE(S):          BCC2018/1143230

MEMBER:  Darren Renton

DATE:  20 February 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 20 February 2020 at 3:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – enrolment in lower-level courses in different subject area – no application for appropriate visa – credibility – inconsistent and untruthful evidence – no evidence of knowledge of intended course or education provider – value of courses to applicant’s future – wife and child separated and returned to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

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 10 October 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

1. The applicants applied for the visas on 10 March 2018. 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.

1. 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). A copy of the delegate’s decision was provided by the applicant to the Tribunal.

1. The primary applicant appeared before the Tribunal on 9 September 2019 to give evidence and present arguments. At the commencement of the hearing the primary applicant confirmed with the Tribunal that the second applicant (his former wife) and third applicant (his son) had returned permanently to India as they had separated from the primary applicant. The primary applicant confirmed that the second and third applicants were no longer applicants in his application and that the matter should proceed only in relation to him. Consequently, the primary applicant will be referred to as the applicant in this decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

1. 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?

1. 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.

1. 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.

1. The applicant was initially granted a subclass 573 student visa on 3 July 2015 to study a 3 month academic English course and then to progress to a Master of Business Administration International at Edith Cowan University. This course was expected to conclude on 31 December 2017.

1. The applicant arrived in Australia from India on 23 July 2015.

1. After enrolling in the academic English course, the applicant failed to attain a sufficient level of proficiency to progress to his Master’s degree.

1. As is apparent from the delegate’s decision and the applicant’s application for a student visa on 10 March 2018, the applicant changed his career path from Business Administration to commercial cookery.

1. It is apparent from the information contained within the delegate’s decision that the applicant was in breach of the conditions of his 573 visa, as he changed course to a different education sector that was at a lower level than that for which he had been granted his initial visa. The applicant commenced studying a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality Management.

1. In explanation for why he did not apply for a new visa to study the lower course, the applicant claimed that when he did not attain the necessary mark in the academic English course, his housemates, who he did not previously know, but who he claimed were from the same village as he was, “brainwashed” him into doing commercial cookery as it was an easier course to do and he could remain in Australia while studying it. Further, he claimed that his housemates said that they had done the commercial cookery courses and that there were good opportunities for work in India as a chef/cook.

1. The applicant further claimed that when he approached his education agent about changing courses his agent did not tell him that he was required to apply for a different student visa. The applicant repeatedly claimed that he was new and didn’t know what to do and relied on what his housemates and the agent said.

1. The Tribunal explored with the applicant how someone of his apparent intelligence, who already held a Bachelor degree from India and who wanted to study a Master’s degree in a field that he had been preparing to enter, could so easily be swayed or “brainwashed” as he claimed, to abandon his proposed course of study and the job he hoped to obtain, all to start a course that he had no prior interest in and which would have resulted in a career that would make less money.

1. In reply the applicant simply claimed that he had been “brainwashed” and that he had made a mistake. The Tribunal does not find the applicant’s explanation either plausible or convincing.

1. In the applicant’s application of 10 March 2018 he sought to undertake a Bachelor of Business at Stott’s College which was due to be completed on 31 December 2019 (unfortunately for the applicant he was unable to pay his fees and his enrolment was cancelled by the education provider). In his application, he claimed as follows:

   I have completed my Certificate Ill and Certificate IV in Commercial Cookery from Stanley College, Perth. This week I have completed my Diploma of Hospitality Management from Stanley College and waiting for my results for the current course. I will be commencing my higher education studies, Bachelor of Business from 19 Mar 2018. I should be given the opportunity to complete my higher education studies

1. As noted by the delegate and conceded by the applicant during the hearing, what he claimed above was not true.

1. While he had completed the Certificate III course and been awarded his certificate, he had not in fact completed either the Certificate IV or Diploma courses as there were still units outstanding and assignments to be marked. The applicant claimed that he was told by Stanley College (where he was studying the Certificate and Diploma courses) that they would mark his outstanding assignments and send him his Certificate IV in a few weeks.

1. The applicant initially claimed that he believed he had completed both the Certificate IV and Diploma when he made the statements in his application. Under further questioning this position changed. When asked if he completed the courses, the applicant initially said “no” then changed this to “yes”. He claimed that Stanley College told him he would have to redo some units even though he claimed to have finished the Certificate IV and had no idea why the College didn’t send him his certificate. When asked again why he claimed to have completed both the Certificate IV and Diploma courses when this was not true, the applicant claimed that he knew there were units outstanding and that he had not completed either the Certificate IV or Diploma courses.

1. In an attempt to clarify the confusing nature of the applicant’s evidence, the Tribunal again asked why he told untruths. The applicant claimed that he thought he was getting his Certificate IV in a few weeks as he believed he had finished the course even though he knew he still had units to complete with assignments he had recently submitted. He claimed the College either did not mark the assignments or failed him but could not explain that satisfactorily to the Tribunal. The applicant went on to claim that the College stopped listening to him.

1. The Tribunal put to the applicant that he simply could not believe he had completed the Diploma course as he had not completed the Certificate IV course.  The applicant claimed

that the College said they would give him the Certificate IV and simply moved him into the Diploma course as they did with the other students.

1. The Tribunal is not persuaded by the applicant’s evidence on these matters and considers that the applicant has not given a truthful account of the situation. His explanation lacks credibility and plausibility. The Tribunal is further satisfied that the applicant did not tell the truth in his application but stops short of finding that the applicant deliberately lied in that application regarding completing both the Certificate IV and Diploma courses.

1. The Tribunal considers the applicant’s failure to comply with the conditions of his previous visa to be a relevant factor in his immigration history that is adverse to his present application and gives it weight accordingly. The applicant’s explanation for the breach is, as noted earlier, far from satisfactory. To this can be added evidence given by the applicant during the hearing to the effect that he chose to enrol in courses to maintain an ongoing confirmation of enrolment.

1. In considering the applicant’s circumstances in his home country, the applicant gave no evidence to support any reasonable reason for not undertaking equivalent study in his home country. The applicant has his former wife and child residing in India and the applicant expressed a repeated desire to provide support for his son. The Tribunal is satisfied that the applicant has an incentive to return home to take part in the care of his son, but it is difficult to see this as a significant incentive given the matrimonial separation from his wife and the applicant’s evidence that the child will now be residing with and be cared for by, the mother for the first 5 or so years.

1. The applicant’s economic circumstances in India are unclear. The applicant claimed that had he completed his Master’s degree, he intended to seek employment as a HR Manager with a large multinational company. In such a role the applicant claimed he could secure a salary of AUD$50,000 with the possibility of additional package perks such as a car or a mobile phone. If he completes his studies in cookery, the applicant said that he could seek employment as a chef/cook where he could hope for a salary of between AUD$25,000 –

   $30,000. The applicant claimed that he had spoken to restaurants in India who advised once he had his Certificate IV he could apply and be interviewed but that no offers of employment had been made.

1. In light of the uncertain future of the applicant, the Tribunal finds that the applicant’s economic circumstances present as a significant incentive not to return to India. The Tribunal also notes that the applicant claims to want to provide financial support for his son and that this would necessarily have an impact on the applicant’s economic circumstances.

1. There was no evidence before the Tribunal of any military service commitments or political/civil unrest that act to provide a significant incentive for the applicant not to return to India.

1. In relation to the applicant’s potential circumstances in Australia, there was no evidence before the Tribunal of any ties that would present as a strong incentive to remain in Australia.  What family he did have with him here, has returned to India.

1. The applicant’s claim that he enrolled in an English course to simply maintain a confirmation of enrolment status, without any real regard for the benefit of that course indicates that the student visa program is being used to circumvent the intentions of the migration program.

   To this can be added the applicant’s claims in relation to why he chose to study the unrelated, and lower level cookery courses rather than attempt to pass the academic English course that he originally came to Australia to complete on his way to a Master’s degree. In

light of this, the Tribunal also finds that the student visa is being used to maintain the applicant’s ongoing residence.

1. The applicant did not give evidence about his knowledge of living in Australia or his intended course of study or the education provider he chose. There was consequently no evidence before the Tribunal as to whether the applicant had a realistic level of knowledge of what an applicant is expected to know or of the level of research the applicant undertook in relation to his proposed course of study, beyond being “brainwashed” by his housemates that studying cookery would be easier and a way to maintain residency in Australia.

1. When these matters are considered, the Tribunal concludes that the applicant’s potential circumstances in Australia do provide some incentive for him to remain in Australia. His past decision to study the cookery courses demonstrates that the applicant had abandoned his previously held goals for reasons that are far from persuasive.

1. When regard is had to the applicant’s evidence concerning his study history while in Australia, he has only completed the Certificate III course. The applicant had previously completed Bachelor level studies in India and has effectively regressed while in Australia. The Tribunal notes the applicant’s claims that during his studies, he and his wife separated shortly after the birth of his son and that this had an impact on his ability to study. Notwithstanding the findings earlier regarding the applicant’s credibility, in relation to this aspect, the Tribunal is prepared to accept that a separation in the circumstances claimed by the applicant is likely to have had an adverse impact on the applicant’s ongoing studies. The Tribunal also notes the applicant’s claim that he re-enrolled in a Bachelor of Business course with Southern Cross University to commence in October 2018, however, due to his personal circumstances he had to return to India to deal with aspects of his separation and custody of his son. The applicant claimed that he asked for a deferral of his studies but that the University rejected it and consequently cancelled his enrolment.  The applicant did not present any independent evidence of this from the University and given the Tribunal’s findings in relation to the applicant’s credibility, treats this claim with a degree of concern.

1. As noted previously, the applicant has undertaken and proposes to continue undertaking studies at a level lower than those he already possesses.  The applicant told the Tribunal that he wants to complete his Certificate IV and return home and that he no longer has any interest in completing a bachelor course (or a Master’s course for that matter) in Australia. Given the applicant’s change of career path, and the fact that change is for the worse from a financial perspective, even allowing for the fact that sometimes people make reasonable changes to their career or study pathways, it is difficult to see the applicant’s changes as being reasonable in the circumstances. The proposed course has limited relevance to the applicant’s proposed future employment and provides minimal support to indicate it will assist him to obtain employment or improve his employment prospects in India over and above the bare fact that he claims to now want to pursue a career in cookery. On the applicant’s own evidence he now expects to receive an income below that which he hoped to achieve from his original studies and there is no certainty that the applicant will even find employment in the hospitality industry.

1. In the circumstances, the Tribunal is unable to find that the proposed course provides much value to the applicant’s future other than to a limited degree.

1. The Tribunal has already made some reference to the applicant’s immigration history and its negative impact upon its consideration of the applicant’s case. There was no other evidence before the Tribunal of additional concerns arising in relation to the applicant’s immigration history.

1. Taking all of the above matters into account, both favourable and unfavourable to the applicant, on balance, the Tribunal concludes that the applicant is not a genuine applicant for entry and stay as a student

1. 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).

1. 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.

1. Notwithstanding the applicant’s advice that his wife and son are no longer applicants, for the sake of completeness, as the applicant does not satisfy the relevant criteria, it follows that the second and third applicants do not meet clause 500.311 of the Regulations.

1. 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

1. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Darren Renton 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.

1. 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).

1. 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.

1. 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.

1. 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

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

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

1. 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

1. 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.

1. 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

1. 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

1. 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

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

1. 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

1. 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

1. 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.