Lakhwinder Singh (Migration)

[2022] AATA 881

Lakhwinder Singh (Migration) [2022] AATA 881 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lakhwinder Singh
Mrs Aarti Singh

REPRESENTATIVE:  Mr Harshit Tailor (MARN: 2117239)

CASE NUMBER:  2113603

HOME AFFAIRS REFERENCE(S):          BCC2020/2540356

MEMBER:Peter Booth

DATE:23 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2022 at 11:12am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – genuine temporary entrant – lengthy stay in Australia – diploma level courses completed in unrelated fields – gap in studies – extensive employment in Australia – business plans in home country – multiple visa applications – value of course to benefit future career – return visits to India – maintaining ongoing residence in Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 499; Direction No 69
Migration Regulations 1994, 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 28 September 2021 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 October 2020. 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.

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

4. The applicants appeared before the Tribunal on 21 February 2022 to give evidence and present arguments.

5. The applicants were assisted in relation to the review.

6. For the following reasons, the Tribunal has concluded that the application for review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

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

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

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

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

   (iv)any other relevant matter; and

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

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

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

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

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

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 28 September 2021 refusing his application for a student visa. The applicant understood that the issue for determination was whether he was a genuine temporary entrant.

12.   The applicant was asked to describe his current enrolment including commencement and completion dates. The applicant said “Leadership and Management, Advanced Diploma, leading to Graduate Diploma in Management Learning”. He was invited to state the dates of the courses. He replied Advanced Diploma Leadership and Management November 20 until October 21, Graduate Diploma May 22 until May 23”. The Tribunal asked the applicant why he had provided a confirmation of enrolment document in the Advanced Diploma of Leadership and Management which commenced on 24 January 2022 and was scheduled to be completed on 13 May 2022. He replied “this is extended, in February 21, mother had a stroke, couldn’t go there, I asked College to extend my course for this term”. He was asked whether he meant to say that he had deferred the course for a term. He replied “yes”. When asked whether he had any correspondence with the college about the deferral he said “I have emails I will send them”. He was invited to provide the documents subsequent to the hearing. He agreed to do so.

13.   He was asked when his course was originally intended to be completed. He said “November 21”. When asked when his course will now be completed he said “May 2022”.

14.   The applicant had produced a confirmation of enrolment document to the Tribunal in respect of a Graduate Diploma of Management (Learning) due to commence on 16 May 2022 and be completed on 12 May 2023.

15.   Notwithstanding the vague nature of the applicant’s evidence the Tribunal accepts that he is enrolled in the course described in the confirmation of enrolment.

16.   The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s 359(2). In summary the information provided by the applicant was as follows.

17.   The applicant completed secondary education in India in 2006. He did not disclose any employment history in India.

18.   The applicant arrived in Australia on 18 November 2007 and since that time has returned to India on four occasions namely in December 2009 for one month, in December 2010 for two months, in January 2016 for nine months and in May 2018 for two weeks.

19.   The application for the student visa in question was made in October 2020.

20.   The applicant stated his visa history in Australia to be as follows: he held a “student visa” between October 2007 and October 2011, another “student” visa between December 2011 and April 2012 and a “457 visa” between October 2016 and October 2020.

1. The applicant stated that he had been refused a visa previously. He provided the following details:

   I had applied for RSMS visa on 13th April 2012 and it was refused in 3rd July 2013 Because my employer’s nomination

   was refused so that’s why my visa got refused without any employer nomination.
   I had applied for subclass 457 visa in November 2015 and it was refused February 2016. Because they required C ertificate IV. so i had to reapply with C ertificate IV and got approved in October 2016.

22.   The applicant stated his study history in Australia to be as follows: he completed a general English course between November 2007 and April 2008, he enrolled in a Certificate III in Hospitality Management in February 2009 but did not complete it, he completed a Certificate III in Painting and Decorating between January 2010 and January 2011, he completed a “Certificate IV in Business leading to Diploma of Business” between February 2011 and July 2011, he completed a Diploma of Business between August 2011 and February 2012 and he was “studying now” an Advanced Diploma of Leadership and Management which he commenced in November 2020 and expects to complete in May 2022, has a future enrolment in a “Graduate Diploma of Management” although he provided no further details in respect of the latter course.

23.   The applicant stated that he was employed as a “driver” between April 2008 and October 2010, as a painter and decorator with various firms between November 2010 and April 2012, as a team member with Toll Group between June 2012 and June 2014, as a team member with Just Group between June 2014 and January 2015, and again as a painter and decorator between January 2015 and October 2020. He derived an annual salary of $55,000 from his most recent employment.

24.   The applicant stated that his father and mother reside in India and that his brother and wife reside in Australia.

25.   The applicant stated that he owned assets in India comprising “land”.

1. As to his future employment plans the applicant stated:

   As mentioned above, having my studies completed from Australia including Advance Diploma and Graduate Diploma, I will be self sufficient to handle my own business after furbishing my skills with few interior designers and gaining experience in managing painting work, decoration etc. I will inculcate better understanding of the disciplines like organisational digital strategies, collaborative partnerships, and implementing the improved learning practices that has to play imperative role once I am incorporating my own business while my return to India. Additionally, C onstruction and interior designing sectors are among such rapidly growing businesses in India. India is expected to become the world’s 3rd largest construction market by 2022-2023 as India is witnessing the slight economic downfall with pot pandemic repercussions , however, the same is gearing up and this will generate more avenues for me to commence my business as with the unique skillset I would have gathered by then will be offering me numerous strategies about handling my business. The great volume of constant construction work with a significant rise in the co-working space and building of new generation homes and infrastructural elevations are the main reasons for this. To be more precise there are over 11 million homes expected to be constructed by 2025. In addition, all these factors are directly giving rise to the Interior designing sector in many ways. There are various factors like smart homes, the influence of social media platforms and the drastic change in Indian lifestyle that are responsible for this extreme upsurge. That is why this is said to be the best time to step into the business as per the industry experts, looking at the demand. Due to the evident growth in the income and purchasing power of the Indians, there has been and drastic change in their lifestyle. C hasing the aspired lifestyle many people do not mind spending extra on the interior design of their homes. Things like a bathtub, separate shower unit, open kitchen, balcony garden, and kitchen chimneys have become common, which were never a part of Indian lifestyle/culture earlier. Also, these things no more fall under the luxurious category. The construction sector in India, which employs more than 35 million people, is the second largest employer, next only to agriculture. Therefore, any improvements in the construction sector affect a number of associated industries such as cement, steel, technology, skill-enhancement, etc. As per the government reports, the sector is valued at over $126 billion. It also accounts for more than 60 per cent in total infrastructure investment. About half of the demand comes from the infrastructure sector, and the rest is driven by the real estate sector and other industrial activities. The Indian paint industry has been witnessing a gradual shift in the preferences of people from the traditional whitewash to high quality paints like emulsions and enamel paints, which is providing the basic stability for growth of Indian paint industry. Besides, it is creating a strong competitive market, where players are utilizing different strategies to tap the growing demand in the market for a larger share. Moreover, rise in disposable income of the average middle class coupled with increasing investment on education; urbanization; development of the rural market; and various launches of many innovative products, like friendly, odour free, and dust & water-resistant paints, are major drivers that are propelling the growth of the paint market in India

2. As to his expected future remuneration the applicant stated:

   I plan to find work in good interior designing companies such as Knesta Architects, Akriti Interiors, Kulwinder Interior Designers and Decorators etc. I will be looking forward to work as head painter, site supervisor, texture artist, team leader etc. I will be earning around Rs. 50,000 per month which will a good return on investment once I return to my home country. This would be my initial income while I gain industrial experience in my country. Once I start my own company, I will earn a much lucrative income and thus facilitating me to ploughing back my money in my business for further diversification.

28.   The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.

29.   When asked whether he had any employment history in India the applicant said “no”.

30.   He confirmed he arrived in Australia on 18 November 2007 as the holder of a “Student visa”. When asked whether his wife had accompanied him on the trip he said “no”. He was asked whether he was married at the time. He said “no”. He was asked when he was married. He replied “2011, one in Temple and another in the court”.

31.   When asked what he intended studying when he arrived in Australia he replied “hospitality management, English course first, then Diploma of Hospitality Management leading to Bachelor of Hospitality”.

32.   He was invited to explain the visa refusals. He replied “I was working as a painter, he wanted to be permanent painter, IVs was going to expire, he said he would sponsor, he applied, is employer nomination was refused, then he applied for Tribunal as well but would not provide documents, mine was refused that is my visa was refused”. He did not elaborate. He was asked to explain the other visa refusal. He said “I had to leave Australia, and been to India, applied for 457 work visa, applied in November 2015 and then got refusal in February 2016, it required a Certificate IV in Building and Construction then I was refused, I re-applied in April 2016 was granted 2016”.

33.   The Tribunal observed that he enrolled in a Certificate III in Hospitality Management but did not complete it. He was invited to explain. He said “first time I start doing Certificate III but enrolled in at other college”. When invited to give more details, he said “Diploma Hospitality Management started in 18 February 2008 end date 20 November 2009”. He was invited to continue. He said “I didn’t start it, I had to do English course first, supposed to start 26 November 2007, finish 8 February 2008 when I did English because they failed whole batch because it didn’t have seats in diploma, so we applied in MRT, took one year, I won MRT, college was closed soon after that”.

34.   The Tribunal observed that the next course enrolled in was a Certificate III in Hospitality Management due to start in February 2009. The applicant agreed. He said “start a course in February 2008 but didn’t finish because, left in middle, until 2009, went to India 3 February 2009”. The Tribunal asked whether the applicant was contending that this course started in February 2008. He replied “not 2009”. The Tribunal notes that in the information provided to it by the applicant he had previously stated that this course started in 2009.

35.   The applicant was invited to provide a concise study history subsequent to the hearing. He said that he would do so.

36.   The Tribunal observed that there appears to be a gap in his study between 2011 and 2020. He was invited to explain this. He said “applied for RMS, applied MRT, wasted this time year, applied 2013 or 2014”. He did not elaborate. When asked whether he was studying during this period he said “no didn’t study after 2012”. He was again asked about the study between 2011 and 2020. He replied “Advanced Diploma of Leadership and Management”.

37.   The Tribunal had not been provided with a certificate of completion in respect of that course. The applicant was invited to provide documents proving he had completed the course subsequent to the hearing. He said that he would do so.

38.   When asked whether he had studied between 13 April 2012 and 2020 he said “working 2012 until 2016, left Australia, been to India, applied for 457, visa refused, reapplied in April 2016, waiting India, granted October 2016, then I came back to Australia on 9 November 2016 and started work with employer who was sponsor for 457, work with him for four years, father got stroke in 2018, no one there, I got some care, I decided to finish my work visa, and then got course to get more qualify and go back to India, I have painting experience with no knowledge of leadership and management, I decide to do leadership and management, can leave to do business, I was waiting for Tribunal decision on RMS and then MRT got refused, and I went to Federal Court in 2014”.

39.   It was asked when his 457 visa had expired. He replied “28 October 2020”. The Tribunal observed that the applicant’s student visa application had been made on 27 October 2020, one day prior to the expiry of his 457 visa. The applicant agreed.

40.   He was asked why he decided to return to study. He said “I want to start business in India, our research that is required for the business, I need to gain this knowledge”.

41.   It was asked how many years he had been working as a painter in Australia. He said “more than five years”. He was asked why he needed to complete a vocational course in leadership and management after five years of such experience. He said “I got practical skill but need to start the business, I want to start next level over there”.

42.   He was asked when his wife arrived in Australia. He said “2016”. When asked why his wife had travelled to Australia he said “she wanted to stay with me”. He was asked what visa she had at that time. He said “dependent on 457”. The applicant was asked why he and his wife did not return to India when the 457 visa had expired. He said “because she wanted to stay with me and then go back together”.

43.   It was asked whether he had any other relatives in Australia. He replied “brother lives in Brisbane”.

44.   When asked whether he had any assets India in his name he said “no”.

45.   The Tribunal observed that he had completed a Certificate IV in Business in 2011 and a Diploma of Business in 2012. The applicant agreed. He was asked why he needed to complete the course in leadership and management. He said “70 different units in this concourse then business I got advice they said different units in this course”.

46.   He was asked whether he had applied for permanent residence in Australia he replied “yes, RMS”. He was asked whether he intended to apply for permanent residence in Australia in the future. He said “I will not, go back, parents had stroke”.

47.   He was asked when his parents had suffered strokes. He said “May 2018 father, mother February 2021”. He was asked why he did not return to India when his mother had a stroke. He said “pandemic”. He was asked why he had not returned to India now. He said “I am planning to go straight after”.

48.   The Tribunal observed that the applicant intended to study until May 2023 but that he wanted to return to India. He was asked to explain.  He said “if I go back now will not earn enough”.

1. When invited to add anything further to his evidence the applicant said “I have been in Australia for 14 years I want to make my future now, want to finish course and go back”.

2. The second applicant, the applicant’s wife, was invited to give evidence. She said “my husband has been here for 13 or 14 years, wants to study for his future”. She was asked why she did not return to India when her husband’s 457 visa expired. She replied “he had no degree to do business in India, I want to help now”. She was asked why she did not return to India when her husband’s most recent student visa application was refused. She said “I want to stay with husband”. She was asked whether she intended to apply for a student visa in her own name. She said “no”. She was asked whether she intended to apply for permanent residence in Australia. She said “no”.

3. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing. Nonetheless they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. A certificate dated 20 March 2016 confirms that the applicant completed a Certificate IV in Building and Construction (Building), a certificate dated 11 December 2011 confirms that the applicant completed a Certificate IV in Business, a certificate dated 13 April 2012 confirms that the applicant completed a Diploma of Business, and a statement of attainment dated 29 October 2021 states that the applicant has satisfactorily completed five units as part of an Advanced Diploma of Leadership and Management course. The Tribunal observes that the only enrolment document provided by the applicant in respect of the Advanced Diploma of Leadership and Management is a confirmation of enrolment which states that the course was due to commence on 26 October 2020 and be completed on 29 October 2021. No documents have been provided by the applicant to prove that the course completion date has been extended.

4. Prior to the hearing the applicant provided a statement in support of his application for review. The statement is unsigned, undated and without page numbers or paragraph numbers. The statement was not referred to by the applicant during the course of giving evidence at the hearing. Nonetheless it has been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to the statement. The applicant stated that he intended to commence a business as a painter and interior decorator in India. He has not explained to the Tribunal’s satisfaction why his existing skills and experience are insufficient to enable him to do so. He also stated some details of his visa history namely that he was refused an “RSMS” visa on

   
   

   3 July 2013. He applied to this Tribunal for a review of that decision. That application was unsuccessful. He then appealed to the Federal Court in October 2014. He abandoned this application in January 2016. He returned to India in January 2016 and applied for a 457 visa whilst offshore. This application was refused in 2016. He applied again for such a visa in April 2016 and that application was granted in October 2016. He returned to Australia in November 2016. He asserted that a Graduate Diploma in Management is required to conduct his painting business in India. However the Tribunal observes that he has worked as a painter in Australia for approximately five years, has completed a painting and decorating course in Australia and is currently studying a Diploma of Leadership and Management. His explanation for the need to start yet another course is unconvincing.

5. The applicant’s representative was invited to make submissions to the Tribunal. He declined to do so.

6. Subsequent to the hearing the applicant provided copies of emails with his course provider regarding a deferral of study. Those documents show that a deferral of study was granted in respect of term 1 of  2021.This was due to his mothers medical condition. No other emails were produced.

7. Subsequent to the hearing the applicant’s representative provided a summary of the applicant’s study history and of his visa history.

8. The summary of the applicant’s visa history is as follows:

Visa	Date Granted	Date Expired	Notes
Student Visa Sub Class 573	30/10/2007	30/10/2011	Student Visa Cancelled on 11/11/2008 AAT application lodged on 13/11/2008 AAT result visa not to cancel on 25/03/2009
Bridging Visa A	11/11/2008	25/03/2009	I was studying Diploma of hospitality Management at Yorke Institute Pty Ltd
Student Visa 573 continue	25/03/2009	30/10/2011	I didn’t complete diploma of hospitality management at Yorke institute because I couldn’t develop interest in hospitality sector. Already I have done many units, but college didn’t provide me progress of my course. Then I changed the course to certificate III In painting & decorating, Certificate IV in business at Western Institute of Technology Course finished on 01/08/2011,
Student Visa Extension Subclass 572	18/11/2011	15/04/2012	I have done my Diploma of Business at Western Institute of Technology Finished on 15/02/2012
RSMS Visa 857	Applied on 13/04/2012	Refused on 04/07/2013	I was on bridging visa A and working with TOLL GROUP.
MRT for RSMS 857	Applied on JULY 2013	Refused on OCT 2014	I was on Bridging Visa A and woking with TOLL and JUST GROUP.
Appeal in FEDERAL COURT	Applied on October 2014	Withdrawn On January 2016	I was working with Shane Hodges painting contractor as a painter.I left Australia in 26/01/2016 and went back to india.
Temporary Working VISA 457	Applied offshore on 27/11/2015	Refused On 22/02/2016	My wife AARTI SINGH was a dependent applicant in 457 VISA Application. I was in India when I received 457 VISA refusal.
Temporary Working VISA 457	Applied Offshore on 29/04/2016	Granted On 28/10/2016Expired on 28/10/2020	I Returned back on 10/11/2016 and wife came to Australia 09/12/2016. and I started work with my Employer on 14/11/2016 till OCT 2020.
STUDENT VISA 500	Applied on 27/10/2020	Refused On 28/09/2021	I was studying and working part time as a painter on Bridging VISA A
AAT Appeal for STUDENT VISA 500	Applied On 06/10/2021	Still on Bridging Visa A Working and studying

1. The summary of the applicant’s study history is as follows:

Course Name	Institution Name	Course Start Date	Course End Date	Status of Enrolment
English for academic purposes	The Meridian International Hotel School Pty Ltd	26/11/2007	08/02/2008	Course Completed Successfully
Diploma of Hospitality Management	The Meridian International Hotel School Pty Ltd	18/02/2008	20/11/2009	Cancelled Enrolment. Changed to same course in Yorke Institute Pty Ltd
Bachelor of Hospitality Management	Central Queensland University	02/03/2010	30/08/2011	Cancelled Enrolment.
Diploma of Hospitality Management	Yorke Institute PTY LTD	20/02/2008	06/01/2010	Started the course in Feb 2008 and Discontinued the course in Sep 2009. I had an interest in Painting and took an admission in that course.
Certificate III in Painting and Decoration	Western Institute of Technology	15/01/2010	15/01/2011	Course Completed Successfully
Certificate IV in Business	Western Institute of Technology	01/02/2011	01/08/2011	Course Completed Successfully
Diploma of Business	Western Institute of Technology	15/08/2011	15/02/2012	Course Completed Successfully
Certificate IV in in Building and Construction	Claredale Academy	03/12/2015	16/03/2016	Course Completed Successfully
Advanced Diploma of Leadership and Management	Greenwich English College	26/10/2020	29/10/2021	Currently studying. Course extended due to COVID-19 and Mother’s condition in India
Advanced Diploma of Leadership and Management	Greenwich English College	24/01/2022	13/05/2022	Currently studying. Extended COE. Will complete in May 2022
Graduate Diploma of Management	Greenwich English College	16/05/2022	12/05/2023	Future COE

CONCLUSIONS

1. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

59.   Without diminishing the applicant’s evidence, it can be summarised as follows. The applicant completed secondary education in India and 2006. He has no employment history in India. He arrived in Australia on 18 November 2007. Since that time he has returned to India on four occasions, namely in December 2009 for one month, in December 2010 for two months, in January 2016 for nine months and in May 2018 for two weeks. His return to India in January 2016 was due to a visa refusal and the applicant’s abandonment of appeal to the Federal Court. He arrived in Australia originally as the holder of a Subclass 573 visa, intending to study a series of hospitality courses culminating in a Bachelor of Hospitality Management. His visa history is complex and lengthy. It is set out in the table provided by the applicant’s representative. In the Tribunal’s view the applicant’s visa history is not consistent with a genuine temporary entrant. It is consistent with the conduct of a person who is intent on staying in Australia by any available means. The applicant’s study history is also lengthy and complex. It is set out in a table provided by the applicant’s representative. The applicant has not completed a bachelor’s level course in Australia despite coming here for that purpose. He has changed direction in his study on approximately four occasions, namely from hospitality to painting and decorating, then to business now to leadership and management or management. In the Tribunal’s view this is not the conduct of a genuine student or that of a genuine temporary entrant. Rather it is consistent with the conduct of a person who is using the study visa system to prolong his stay in Australia for as long as possible.

60.   The applicant applied for a student visa one day prior to the expiry of his Subclass 485 visa. This is not consistent with the behaviour of a person who is a genuine temporary entrant, rather it is consistent with the conduct of a person who is intent on staying in Australia by using the student visa system.

61.   The applicant referred to an “RSMS” visa application. This was also referred to as an “RMS” visa or a “visa 857”. He stated that he applied for this visa on 13 April 2012. The Regional Sponsored Migration Scheme, Subclass 857 visa was a visa which was employer-sponsored. If successful the visa holder was entitled to reside permanently in Australia. It was open to the holder of a Subclass 457 visa. The RMS, Subclass 857 visa scheme was closed on 1 July 2012. An intention to live in Australia permanently is inconsistent with the person being a genuine temporary entrant. It was apparent from the applicant’s answers to questions during the hearing that he was well aware that his application was an application for permanent residence in Australia. This is given some weight by the Tribunal.

62.   The applicant was married in India in 2011. His wife travelled to Australia on 9 December 2016. This was approximately four weeks after the applicant had returned to Australia having successfully obtained a 485 visa offshore on 28 October 2016.

63.   The applicant has no employment history in India, he has no assets in India, he has had stable employment in Australia, his wife and brother reside in Australia although his father and mother reside in India.

1. The applicant has not explained to the Tribunal’s satisfaction why he did not complete a bachelor level course in Australia despite holding a higher education visa, why he has changed the level of his study in Australia, why he has changed the direction of his study in Australia on approximately four occasions, why he has returned to India on only four occasions since arriving in 2007, why he did not return to India permanently when his student visa was cancelled on 11 November 2008, why he did not return to India permanently when his regional sponsored migration visa application was refused on 4 July 2013, why he did not return to India in October 2014 permanently when his then application to the Migration Review Tribunal was refused, why he did not return to India permanently when his Subclass 485 visa expired on 28 October 2020, why he chose to return to study after the expiry of his Subclass 485 visa, why he applied for a student visa on 27 October 2021 the day prior to the expiry of his Subclass 485 visa, a clear and cogent career path, why his existing skills and experience are insufficient to enable him to embark on his vague career plans, and why needs to study a graduate diploma in management in order to conduct a painting business in India.

2. In considering whether the applicant has met the genuine temporary entry criterion, the Tribunal had regard to the following factors consistent with cl 500.212 and the Ministerial Direction No.69. The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether he has satisfied the genuine temporary entrant criterion.

3. The Tribunal has considered the applicant’s circumstances in his home country. The applicant is married and is from India. The applicant has provided evidence of direct family ties to his home country which operates as an incentive to return. The Tribunal finds that he has been able to demonstrate ties to act as an incentive to return to his home country at the completion of the actual or proposed study. Whilst the Tribunal accepts that the applicant may have family ties to India, having regard to the time the applicant has spent in Australia and the intended period of future stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

4. The Tribunal has considered the applicant’s potential circumstances in Australia. The applicant first arrived in Australia on 18 November 2007 as the holder of a student visa. The proposed study would extend the applicant’s stay until at least May 2023. The Tribunal considers that the length of the proposed stay suggests that the applicant is studying for the purposes of staying in Australia. Whilst plans can change, in the Tribunal’s view this is not the conduct of a genuine temporary student. On balance it is consistent with the applicant having decided to extend his stay in Australia by utilising the student visa programme.

5. The Tribunal does not place weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country. There are several reasons for this. First the applicant has given extremely vague evidence in that regard. Secondly the applicant has not explained to the Tribunal’s satisfaction why his existing skills and experience, including five years’ employment in Australia as a painter and a vocational course in painting and decorating completed in Australia, are insufficient for him to embark on his vague career plans. Thirdly he has not explained to the Tribunal’s satisfaction why having completed a course in business, and currently studying a course in leadership and management, a further course in management is required in order to conduct a painting business in India.

6. The Tribunal observes that his current study plan is inconsistent with the applicant’s work history in Australia and is inconsistent with his plans when he entered Australia.

7. On balance, the Tribunal is not satisfied that the applicant has established that study will provide him with significant benefits in his proposed career plan, considering the cost of the study and the fact that the applicant already has experience as a painter in Australia and has completed a vocational course in painting and decorating in Australia as well as course in business and is currently studying leadership and management. Accordingly, the Tribunal is not satisfied that the proposed additional study has a reasonable prospect of providing significant value to his career beyond the existing qualifications.

8. The Tribunal turns to consider whether there are any other relevant matters. The applicant applied for a visa in 2012 which, if successful, would have entitled him to reside in Australia permanently. Whilst he was unsuccessful in the application the fact of the application is inconsistent with the applicant being a genuine temporary entrant to this country. Rather, in the Tribunal’s view, it is consistent with so many of the applicant’s other actions, with the conduct of a person who is intent on staying in Australia by any available means.

9. The Tribunal has considered the applicant’s economic circumstances in his home country relative to his potential circumstances in Australia. Having regard to the disparity in economic circumstances between India and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return to India. The applicant has been unable to demonstrate substantial ties or personal assets in his home country which diminishes his incentive to return to India.

10. The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study. The applicant has not demonstrated any clear and substantial improvements arising from his proposed study which will outweigh the significant time and monetary commitment this course will require. Accordingly the Tribunal is not satisfied that the applicant has demonstrated the value of his proposed course to his future.

11. The Tribunal does give weight to the evidence that since the applicant’s arrival in Australia on 18 November 2007 the applicant has spent more than 14 years in Australia and only returned to India on four occasions, he has no employment history in India, he owns no assets in India, his wife and brother reside in Australia, he applied for a visa which would have enabled him to reside in Australia permanently and he has had stable employment in Australia, all of which indicates that he does not appear to have strong personal ties to India. On balance, the Tribunal assesses the applicant’s incentive to return to India to be minimal.

12. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for further stay as a full-time student. Having regard to the evidence as a whole the Tribunal is satisfied that the applicant is a person who is intent on staying in Australia by any available means. It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia, rather than due to a genuine interest in this area of study.

1. The Tribunal has considered all information provided by the applicant in support of his application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in his home country, potential circumstances in Australia, the value of the proposed course to his future, his immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

2. On the contrary, the evidence suggests that the applicant has enrolled in the present course for the purposes of securing a further student visa, rather than due to a genuine interest in study. The Tribunal considers that the applicant is using the student visa programme as a means of maintaining ongoing residence in Australia, and does not have a genuine intention to stay in Australia temporarily.

3. There is no evidence before the Tribunal regarding the following factors indicated by Direction No.69: economic circumstances of the applicant; any potential military service in India; political or civil unrest circumstances in India; remuneration the applicant could expect to receive in India or a third country compared with Australia; circumstances in India relative to Australia or any other country; and the applicant’s circumstances in India relative to others in that country.

4. 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).

5. 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.

6. 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.

7. The application of the applicant having been unsuccessful, it follows that the application of the second applicant must also fail.

   DECISION

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

   Peter Booth
   Member

   
   

   Attachment – Direction No.69

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

   (Section 499)

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

   Dated: 18 April 2016

   Peter Dutton

   
   

   Minister for Immigration and Border Protection

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

   Part 1 of Direction No. 69 - Preliminary

   Name of Direction

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

   It may be cited as Direction No. 69.

   Commencement

   This Direction commences on 1 July 2016.

   Interpretation

   Act means the Migration Act 1958.

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

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

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

   Regulations mean the Migration Regulations 1994.

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

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

   Student visa means a Subclass 500 (Student) visa

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

   Application

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

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

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

   Preamble

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

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

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

   a.the applicant’s circumstances; and

   b.the applicant’s immigration history; and

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

   d.any other relevant matter.

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

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

   Part 2 of Direction No. 69 - Directions

   Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

   The applicant’s circumstances

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

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

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

   The applicant’s circumstances in their home country

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

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

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

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

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

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

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

   The applicant’s potential circumstances in Australia

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

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

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

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

   d.whether 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.