Limba (Migration)

Limba (Migration) [2022] AATA 539 (11 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kavish Limba
Mrs Suman
REPRESENTATIVE:  Mr Harjeet Singh Chahal (MARN: 1688913)
CASE NUMBER:  2003318
HOME AFFAIRS REFERENCE(S):          BCC2019/6239648
MEMBER:Warren Stooke AM
DATE:11 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 11 February 2022 at 6:32pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – academic progression – long gap in studies and one short return to home country – value of course to applicant’s future – proposed study useful but completed study already appropriate – relatively well-paid employment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 25 November 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the courses proposed to study are similar to previous courses and was not satisfied that the applicants intended to return to their home country at the end of their proposed stay in Australia.
The applicants appeared before the Tribunal on 19 November 2021 to give evidence and present arguments.
The applicant stated that he understood the visa application was refused because the decision mentioned commercial cookery skills; not wanting to leave the country; his wife was with the applicant and he did not have the intention of a genuine temporary student.
The applicant was assisted in relation to the review by his registered migration agent.
The applicant provided the Tribunal with a copy of the delegate’s decision with his application.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant for the purposes of study.
The applicant is a 30 year old from India, who arrived in Australia on a Student Visa on 29 January 2015 and has held the following visas:
a.BVB from 07/2021 to current
b.Temporary Graduate 485 from 05/2018 to 11/2019
c.Student 500 from 01/2015 to 03/2018
The applicant provided evidence that he completed a Diploma in Electrical Engineering from December 2010 to May 2012 with the Punjab State Board of Technology prior to entry to Australia.
The applicant provided evidence that he completed a PTE English language course on 29 January 2019 with a score of 74.
The applicant was granted a Temporary Graduate 485 visa after studying Commercial Cookery and Hospitality Management, which ceased on 25 November 2019.
The applicant provided the Tribunal with copies of a confirmation of enrolment to undertake the following courses of study:
a.Newton College Pty Ltd - Advanced Diploma of Leadership and Management from 03/2021 to 02/2022
b.Newton College Pty Ltd - Graduate Diploma of Management (Learning) from 03/2022 to 03/2023
The applicant enrolled in an Advanced Diploma of Leadership and Management from October 2019 to February 2021, which he did not complete. The applicant stated that he had issues in India and he needed money to pay for study. He also stated that he enrolled online from India and his wife had issues with a pregnancy.
The applicant provided the Tribunal with a response to a s359(2) request for information that he chose to undertake a Diploma of Leadership and Management for the following reasons:
“Newton College is nonpareil in providing fundamental and modern educational experiences focused on leadership development through responsibility, trustworthiness, respect, fairness, devotion and compassion; all while being centred on comprehensive public service. Newton College has implemented modern, career-centred courses within exceptional, premier facilities, focusing on the latest instructional methods in the areas of business development and management.
Newton is honoured to deliver paramount training, so that upon completion, I can gain successful employment, have financial peace of mind, grow into efficacious employees, and be an influential and virtuous member of society. Newton has a range of facilities and services to support learning and to help their students get the most out of their time. They offer international student support, Academic and Financial supports for students and also career services for students.
Many international students come to study in Australia in search of a global exposure and thereby to inculcate a broader perspective. Studying with peers of different cultures and thinking, different ways of doing basic things helps to learn a lot and develop that emotional intelligence while being adaptable. While handling my business, I want to be able to communicate and network with people around the globe and I already get to learn and develop those skills here while I study. I am enthusiastic to learn so much and make the most of the opportunity. The Australian education providers have innovative approaches to education by means of different activities. The teachers here are experienced and in constant touch with the industry. A lot of unique resources are available in the library and enriching information is accessible from the teachers and peers. There are a lot of international students in the campus and thus it is a collaborative environment where learning happens naturally. The class sizes are smaller which facilitates individual attention from the teachers and the classes become highly interactive. I am confident I will learn a lot here and also develop other soft-skills. I am glad that all my presumptions about studying in Australia came true.”
In addition, the applicant submitted:
“I chose to study Advanced diploma of leadership and management because this qualification reflects the role of individuals who apply knowledge, practical skills and experience in leadership and management across a range of enterprise and industry contexts. I will obtain initiative and judgement in planning, organising, implementing and monitoring their own workload and the workload of others. I will learn to use communication skills to support individuals and teams to meet organisational or enterprise requirements. I will learn to plan, design, apply and evaluate solutions
to unpredictable problems, and identify, analyse and synthesise information from a variety of sources.
I chose studying Graduate diploma of management (Learning) course because I will obtain specialized knowledge and skills on how to manage finances, lead and manage organizational change, provide leadership across the organization and develop and implement business plans. I will use my acquired cognitive and communication skills to identify, analyse and synthesise information from a variety of sources and transfer my knowledge to others, and creative or conceptual skills to express ideas and perspectives or respond to complex problems. I will also learn to develop and
implement strategic and marketing plans and how to manage risk, innovation and continuous development.
The hospitality industry is a large umbrella industry that contains several different divisions of businesses such as Air and land travel, Hotel, Food and beverage, Entertainment such as movies/theatre/sports, Tourist attractions. Due to the variety of businesses, the hospitality industry is usually one of the largest revenue producers for countries. Hospitality usually focuses on extra money that people have to spend on pleasurable things and leisure, though not always.
Business conventions, trainings, and meetings in different countries can also affect the hospitality industry greatly. While the hospitality industry can be influenced by a type of visitor, it can also be influenced by domestic and international travellers. The Indian economy is opening up its horizons as it continues to integrate with the world economy.
Therefore, the advantages of conducting business with and in India are many. This has led to the manoeuvring of variety of jobs to the shores of India, bringing in its wake transit travellers, business travellers, business meets and holiday seekers. The Indian tourism and hospitality industry has materialized as one of the key drivers of growth among the services sectors in India. It contributes to 6.23 percent to the National GDP and 8.78 percent of the total employment in the country. Constant transformation, functional growth and improving standards have gained the hospitality industry of India approval all over the world.”
The applicant provided evidence that he has completed the following courses of study, whilst in Australia:
a.Certificate III in Commercial Cookery from 04/2016 to 04/2017
b.Certificate IV in Commercial Cookery from 04/2017 to 09/2017
c.Diploma of Hospitality Management from 11/2017 to 04/2018
The applicant provided the Tribunal with a response to a s359(2) request for information that he has returned to India in July 2015 for two weeks to visit his family and in July 2021, as his mother was seriously ill in India and that he is still in India. The applicant also provided information that he has the following family in India:
a.Mohan Lal - Father in India
b.Anita - Mother in India
c.Rajiv Kumar - Brother in India
d.Sandeep Kumar - Brother in India
e.Suman - Wife in India
The applicant provided the Tribunal with a response to a s359(2) request for information that he has engaged in the following employment during his residency in Australia:
a.Dominos Pakenham - Team member from 12/2015 to 04/2016
b.Pillars of Guidance Community Centre – Chef from 04/2016 to 10/2017
c.Suburban Burger - Chef from10/2017 to 06/2018
d.ARCO Restaurant - Chef from 06/2018 to 01/2019
e.The Cove Hotel - Chef from 01/2019 to 01/2020
f.King Creek Hotel - Chef from 02/2020 to 11/2020
g.The Garfield hotel - Chef from 11/2020 to 03/2021
h.Pelican Society Cafe - Chef from 03/2021 to 07/2021
The Tribunal asked the applicant if he has a business plan and he responded that he is developing a business plan with his father.
The applicant advised the Tribunal that he is currently residing in India with his wife.
Genuine applicant for entry and stay as a student (cl 500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal has considered the evidence provided by the applicant at hearing, together with written statements and submissions from the applicant and finds that the applicant does not intend genuinely to stay in Australia temporarily for the following reasons:
a.Whilst the Tribunal acknowledges that the applicant completed progressive studies from April 2016 to April 2018, including Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management and then held a Graduate Temporary 485 Visa that ceased on 25 November 2019, the applicant did not re-enter and engage in further studies until March 2021. As such, the applicant remained onshore for a period of more than one year and 3 months without participation in any studies;
b.Whilst the Tribunal accepted that an Advanced Diploma in Leadership and Management would be useful, the Tribunal is satisfied that the management skills provided through a Diploma in Hospitality Management would provide appropriate skills to support the applicant’s occupation as a chef, together with the employment experience he has already obtained whilst on a Temporary Graduate visa. As such, the Tribunal seriously questions the additional value and cost of the proposed courses to the applicant’s future career development and is satisfied that the study undertaken is for the purposes of maintaining residency and lifestyle in Australia;
c.The applicant was onshore from 29 January 2015 and provided evidence that he returned home to India in July 2021, where he had only returned to his home country in July 2015 for a two-week period to visit family. This behaviour does not demonstrate that the applicant has maintained strong ties with his home country and given the relatively well-paid employment on award rates for a chef, whilst in Australia, the Tribunal is satisfied that the applicant has accessed significant earnings relative to the potential in his home country, whilst enjoying residency and lifestyle in Australia;
The Tribunal is satisfied that since arriving in Australia the applicant has not undertaken an expected level of home visits to maintain ties with his family, which is of serious concern to the Tribunal with only one two week visitation to his home country in more than 6 years until his return to India for family health reasons in July 2021.
The Tribunal finds that the applicant is intent on obtaining Australian long term residency. The Tribunal does not accept that this is the expected behaviour of a genuine temporary entrant, and to the contrary, demonstrates that the applicant intends to maintain residency and lifestyle in Australia through the use of the Student stream.
The Tribunal has considered the applicant’s circumstances in relation to Direction 69 and is satisfied that on the weight of evidence that there is no apparent reason that would preclude the applicant from returning to his home country based upon military service obligations, political stability or any other factor.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including immigration and study history, circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
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).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
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.

[2022] AATA 539

11 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction