Masih (Migration)

[2023] AATA 3708

Masih (Migration) [2023] AATA 3708 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Salim Masih

REPRESENTATIVE:  Mr Andy Harmit Nurpuri (MARN: 1388298)

CASE NUMBER:  2215781

HOME AFFAIRS REFERENCE(S):          BCC2020/2534662

MEMBER:Frank Russo

DATE:30 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2023 at 1:50pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine student – genuine temporary entrant – no current enrolment – course cancellations – value of course to benefit future career – employment in Australia – family, community and property ties in home country – 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 cls 500.211, 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 applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 October 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 37-year-old Indian national. At the time he applied for the Student visa application under review, the applicant was proposing to undertake a course in General English – Elementary, Intermediate and Advanced (10-40 weeks).

5. The applicant applied to the Tribunal on 15 October 2021 for a review of the decision to refuse the grant of the Student visa.

6. On 30 March 2022, the applicant appeared before the Tribunal (differently constituted) to give evidence and present arguments. On 6 April 2022, the Tribunal (differently constituted) affirmed the decision of the delegate.

7. The applicant made an application for review to the Federal Circuit Court, and on 24 October 2022 the Federal Circuit Court ordered by consent that the decision of the Tribunal (differently constituted) dated 6 April 2022 be quashed and remitted to the Tribunal to determine the review according to law, on the basis that the Tribunal’s (differently constituted) decision was affected by jurisdictional error as the Minister conceded that the Tribunal failed to have regard to a letter written by the applicant, dated 15 December 2021, and that the 15 December letter contained evidence which was cogent, and was central to the assessment of the applicant’s claim to meet the genuine temporary entrant criterion in cl.500.212(a). The matter has now been remitted to the Tribunal by order of the Court.

8. The applicant appeared before the Tribunal by telephone on 19 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicant was assisted in relation to the review. His representative also attended the Tribunal hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 applicant for entry and stay as a student.

12. The Tribunal notes that at the time of the hearing, the applicant was not enrolled in a current course of study, though he provided the Tribunal with a letter of offer from Intellect English, dated 13 July 2023, for a General English course from 7 August 2023 to 1 August 2025. The Tribunal therefore accepts that the applicant is able to obtain a confirmation of enrolment (CoE) for a registered course of study, and therefore accepts that he meets the enrolment condition in cl.500.211 of Schedule 2 to the Regulations.

13. In addition to the application form, the applicant provided the Tribunal with a copy of the delegate’s reasons for decision and notification of the decision from the Department. In response to a.359(2) invitation to provide information, on 16 December 2021, the applicant provided the following additional documents:

    a.A completed ‘Request for Student Visa Information’ form;

    b.A CoE for General English from 17 January 2022 to 15 January 2023, issued by Australian National College Pty Ltd (ANC); and

    c.A signed statement from the applicant, dated 15 December 2021.

14. On 8 March 2022, the applicant provided the Tribunal with a response to a hearing invitation, together with the following additional documents:

    a.Copy of CoE already provided;

    b.Confirmation of enrolment status letter from ANC, dated 8 March 2022;

    c.Valuation of a home in the applicant’s mother’s name, dated 5 March 2022, by Singh and Associates Architects;

    d.Bank statement; and

    e.Affidavit of support from the applicant’s mother, together with copies of her Indian ID card and Income Tax Department card.

15. The applicant provided additional copies of the above documents on 17 March 2023.

16. Following the remittal of the application for review to the Tribunal, on 3 July 2023, the Tribunal adopted the procedure in s.359A of the Act to put to the applicant information which could be the reason, or part of the reason, for affirming the decision under review, namely that a recent check of his enrolment records in the Provider Registration and International Student Management System (PRISMS) database indicated that he did not hold a current CoE in a course of study, as he last held a CoE on 23 June 2022. The Tribunal informed the applicant that this information may be relevant because it would mean that he did not meet clause 500.211 of Schedule 2 to the Regulations and noted that it is a requirement for the grant of the Student visa that he be enrolled in a course of study at the time of the decision. The Tribunal also noted that the information from the applicant’s PRISMS record may be relevant in assessing whether he is a genuine temporary applicant for entry and stay as a student. The Tribunal gave the applicant until 17 July 2013 to comment or respond to the particulars of the information which were put to him.

17. The applicant responded to the Tribunal’s s.359A letter on 15 July 2023 by providing the following documents (further copies were also provided on 17 July 2023):

    a.A submission from the applicant’s representative, dated 15 July 2023;

    b.A letter of offer for General English on 13 July 2023 issued by Intellect English, starting on 7 August 2023 and ending on 1 August 2025;

    c.Bridging E visa notification letters from the Department of Home Affairs, dated 26 October 2021 and 13 May 2022; and

    d.Current VEVO visa details check, dated 15 July 2023.

18. The applicant responded to the hearing invitation for 19 September 2023.

19. Following the hearing, on 3 and 4 October 2023, the applicant provided copies of English language study notes, as well as an email from his representative.

20. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file, which include the applicant’s Indian passport, overseas student health cover and an undated GTE statement.

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

21. 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?

22. 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.

23. 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.

    Evidence given at September 2023 hearing

24. The applicant gave evidence that he arrived in Australia on 25 July 2019 as a dependant of his wife, who came to Australia to study. He stated that he married his wife in April 2019. He could not remember exactly when their relationship ended but stated that they are divorced and it has been roughly 1.5 to two years since their relationship ended.

25. When asked when he decided to study in Australia, the applicant sated that when he came to Australia he travelled Business class on the plane, and there was no-one around him who knew his language. He pretended to sleep for the whole flight, and he found the whole experience very embarrassing. When he went out in Australia, he could not have conversations or find work and he felt ashamed. He stated that these were the reasons why he decided he should study English.

26. The applicant completed Year 10 in India. He stated that he attended classes for Year 12 in India, but only completed one semester and could not sit the exams. He stated that he worked in a variety of roles in India, including as a driver, painter and stitching traditional clothes. He gave evidence that he is not working in Australia because he does not have work rights. The Tribunal put to the applicant that he had provided evidence that he has previously worked in Australia as a cabinet maker. The applicant stated this is the only work he has done in Australia, which he thinks he commenced in 2019. He earned about $800 to $900 a week, though he was paid more if he did overtime. He stopped doing this work after receiving an email indicating that his visa had been cancelled. He stated that he could not remember the date when this occurred, though it was around the time when construction work ceased because of the COVID-19 pandemic.

27. As to his plans after he completes his proposed course of study, the applicant stated that he will return to his family as his parents are getting old and are retired. He stated that it is the son’s responsibility to look after his parents. When asked if he has any future work plans, he responded that he can get more work if he learns English, as he has worked in different fields. He stated that he has previously worked as a cabinet maker, and it is good if he has English skills. He stated that he some cousins who work in construction, so he can work with them and even create a company. He stated that India is growing at the moment and educated people are needed for jobs. He stated that his younger brother is working as a painter, and he himself worked as a painter for seven years while he was still at school.

28. When questioned how the proposed course of study in English would assist him with these future career plans, the applicant responded that English is an international language, and that people send things to be made in India because labour is cheap. He stated that he will be able to do business with lots of people.

29. The Tribunal raised concern with the applicant as to the value to the proposed course of study to his future and put to him that it may provide only limited value to his stated career plans. The applicant gave a confused and circular response, which did not answer the question. He responded that he believes the colleges in Australia that provide English courses are really good. He stated that classes are face-to-face and the way things are taught is good. He stated it will be better for him to learn from people in Australia.

30. When asked how the proposed study will assist him to find employment or improve his employment prospects in his home country, the applicant stated that when he returns to India he will try to start up some work there, such as cabinet making. He stated that he will see if people want labourers to make things. He stated that he will need English in order to work for them and to explain himself. The Tribunal put to the applicant that he had not explained how a qualification in General English would assist him with his future work plans. The applicant responded that he believes English is an international language, so it will help him to communicate with other people from different countries when he sets up his business.

31. As to the remuneration he could earn using the qualification from his proposed study, the applicant stated that he needs English in order to do his proposed business. He stated that in India, there are people who speak English, mainly in the South, and if you speak English you are considered educated. He stated that he can gain respect and trust from people and can therefore get more work.

32. When asked why he wishes to undertake the proposed course of study in Australia, rather than India, he stated that before he arrived in Australia, he tried to do an English class for two to three months, but he could not get anything out of it. He stated that this was demonstrated by the fact that he could not even ask where the toilet was when he travelled to Australia. He stated that if he does business in India with people overseas, he can learn the way people communicate here, which will also be useful to him.

33. The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration and International Student Management System (PRISMS) database and his Departmental movement records. The Tribunal explained to the applicant what the PRISMS database and his movement records are, and the relevance of the records to the review before the Tribunal. The Tribunal put the applicant that his PRISMS record indicates that he has had two enrolments in General English, as follows:

    a.General English starting on 2 November 2020 and ending on 31 October 2021, which was cancelled on 7 October 2021 due to unsatisfactory attendance; and

    b.General English from 17 January 2022 to 15 January 2023, which was cancelled on 23 June 2022 due to unsatisfactory attendance.

34. The Tribunal also put to the applicant the following particulars of information from his movement record:

    a.He was granted a Student visa on 17 July 2019 as a dependant of his wife, with this visa valid until 26 February 2021. He subsequently arrived in Australia on 25 July 2019;

    b.He was granted a Bridging visa A on 26 October 2020. The only recorded condition with any restriction was Condition 8104, which restricted the applicant from working more than 40 hours per fortnight;

    c.On 26 October 2021, he was granted a Bridging visa E, which was subject to Conditions 8104, 8201 and 8506. Condition 8201 requires that the applicant must not engage in any studies or training of more than 3 months. Condition 8506 requires the applicant to notify the Department of a new address;

    d.On 13 May 2022, he was granted a Bridging visa E, which was subject to Conditions 8101, 8207 and 8506. Condition 8101 requires that the applicant not work in Australia. Condition 8207 is the no study condition and requires that the applicant not undertake any study or training in Australia; and

    e.On 1 July 2022, he was granted a Bridging visa E, which was subject to Conditions 8101, 8207 and 8506.

35. The Tribunal put to the applicant that the information may be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision. The Tribunal put to the applicant that the information in these documents may be relevant because it indicates that from 26 October 2020 to 26 October 2021, a period of one year, the applicant could study and work 40 hours per fortnight, and that from 26 October 2021 to 13 May 2022, he could study for up to 3 months and work 40 hours per fortnight. From 13 July 2022 he could not work or study under the conditions of his Bridging visa. The Tribunal put to the applicant that his first enrolment in General English was cancelled on 7 October 2021 due to unsatisfactory attendance, which is prior to the change to his visa conditions on 26 October 2021, which restricted him to no more than 3 months study. The Tribunal indicated that this may be relevant to assessing his intentions in applying for the Student visa.

36. The Tribunal also referred to the submissions of the applicant’s representative, which submit that as a result of the applicant’s substantive visa being cancelled on 21 February 2021, from that moment onwards the applicant would not have had study rights and his CoE for his course was also cancelled. The Tribunal put to the applicant that these submissions are not supported by his PRISMS record, which indicates that the applicant had full study rights until 26 October 2021, and his enrolment in General English was cancelled prior to this date because of unsatisfactory attendance.

37. The applicant confirmed that he understood the nature of the information and its relevance to the issues before the Tribunal, and he wished to comment on it at the hearing. The applicant responded that he received a call from his agent on 28 October 2021 which told him that his dependant Student visa was cancelled. He stated that he remembered that during this call, he was told about the minimum requirements for course attendance, but because he did not understand much English, he believes he was told he could not study from that point on because of the visa cancellation. He stated that he did meet the minimum attendance requirements, but his English was not strong, so there could have been a mistake on his part as well. The Tribunal questioned whether the applicant has any records of satisfactory attendance for his first enrolment in General English. The applicant responded that he will have to obtain further information and he is confident that he can show that he met the attendance requirements.

1. The Tribunal questioned the applicant as to whether there are any reasons why he did not apply to the Department for a change to his visa conditions to allow him to study. The applicant stated that he does not know much about this and that he has just followed the advice received from other people. He stated that he has made some mistakes and not known about things, which has not helped, but he does not know much English. He stated that he thinks he made such a request, but was told there was no room to accommodate it. The Tribunal again used the procedure in s.359AA of the Act to put to the applicant information from Departmental notes recorded in the ICSE database, a copy of which are saved on the Department file, and put to the applicant that they may be the reason, or part of the reason, for the Tribunal affirming the decision under review. The Tribunal indicated that these notes contain details of discussions which the Department had with the applicant when the Bridging visa E was granted on 26 October 2021. They indicate that on 16 October 2021, a Department officer conducted an interview with the applicant, and that the interview was conducted with the assistance of a TIS Punjabi interpreter. The notes indicate that the applicant requested work rights and study rights so he could complete an English language course, which was requested by the applicant’s former employer as a condition of his employment. The notes indicate that the Department officer determined it was appropriate to grant a visa subject to Condition 8201 to allow the applicant to undertake the ‘short course’.

2. The ICSE notes also indicate that on 30 June 2022, the applicant applied for a change to his Bridging visa E conditions by submitting a Form 1005, in which he requested a change to the ‘No work’ condition imposed on his visa. There is no record of him having requested a change to his study rights. The Tribunal put to the applicant that this information may be relevant because it may suggest that in October 2021, the Department made the applicant aware of options he had for applying to the Department for a change to his visa conditions, which he was counselled about with the assistance of a Punjabi interpreter, and he was granted a visa subject to Condition 8201 to allow him to undertake a short English course. It may also suggest that the applicant made a request for a change to his work rights in June 2022, but made no corresponding request for a change to his study rights, which may be relevant to assessing his intentions in remaining in Australia.

3. The applicant confirmed that he understood this information and the relevance of it to the issues before the Tribunal. He indicated that he wished to respond to the information at the hearing. The applicant responded that he was given permission to study for 3 months in October 2021, but he did not want to be too pushy. He stated that he was told there was no room to move from this, so he did not want to ask the Department again. He confirmed that he received work rights and stated that it was his mistake in not asking for study rights as he was afraid to ask again. He stated that he thought that if he kept asking for study rights, he would annoy the Department officer. The Tribunal put to the applicant that he did ask the Department for work rights in June 2022, which may suggest that his priority in remaining in Australia has been to obtain work, rather than to pursue his proposed studies. The applicant stated that he accepts this was his mistake. He stated that he does want to learn English and requested that he now be granted permission to study.

4. As to his personal ties, the applicant stated that he has his parents, a sister and brother in India. He also has a sister in Cyprus. As to any family in Australia, he stated that he had only his wife in Australia, although they are now divorced. He stated that he is not currently in a relationship with anyone, although he afterwards stated that he is betrothed to someone in India, and he has to return to India to be with his family. When asked if he has any specific plans for marriage, he stated that it will depend on the bride’s family. He stated that he wants to be close to his family. He currently lives with someone from his village, whose family knows his grandparents.

5. The applicant stated that he has two properties in India, at least one of which is in his name. He stated that a house was built for him when he was married, but his wife wanted him to come to Australia. He stated that he also has a block of land which he wishes to donate to a nearby temple. He confirmed that he has a bank account in India, although he did not know how much money he has in it.

6. The Tribunal put to the applicant that his immigration history may indicate that he enrolled in a course in General English in 2020 and applied for the Student visa to maintain ongoing residence in Australia after his dependant Student visa was cancelled. The Tribunal put to the applicant that he was working at the time as a cabinet maker and may have intended to stay in Australia for reasons other than pursuing his proposed studies. The applicant responded that at the time he didn’t have any English language and he was ashamed of his situation. His wife put him down because he could not interact with people here. He stated that he does not wish to return to India as a ‘loser’ and wants to prove himself.

   Oral submissions from the applicant’s representative

7. The applicant’s representative was invited to make oral submissions at the hearing. He submitted that the applicant had given evidence about his desire to return to his home country. He submitted that the applicant would like to improve his life conditions and is unsure of the pathway he will take to do this but has an interest in cabinet making. He submitted that the applicant has conveyed a desire to start a business with his brother, and that having English skills will improve his opportunities and increase the number of clients he can get. He submitted that English is more of a life skill rather than a career, and that regardless of the industry the applicant goes into, having English language skills will improve his chances. He submitted that the applicant has experienced a lot of things, including a breakdown in his relationship with his former partner, the COVD-19 pandemic and experiencing some misguidance through a different migration agent.

8. The Tribunal granted the applicant 14 days to provide additional information, in particular information in support of his claims that his attendance during his first enrolment in General English was satisfactory.

   Findings regarding the factors in Direction No. 69

9. Having considered the applicant’s claims against all the factors specified in Direction No. 69, and taking into account all the relevant information, the Tribunal is not satisfied that the applicant meets the genuine temporary entrant criterion. This finding is based on several factors.

   The applicant’s circumstances in his home country

10. I accept that the applicant’s personal ties to India include the presence there of his parents, a brother and sister. I accept his claim in his s.359(2) response that he is in contact with his family every day through video or voice calls. I also accept his claim in his s.359(2) response that he lived an active social life in India, which included friends, cousins and extended family, and participated in religious and cultural events. I also accept that the applicant has divorced his former wife who was present with him in Australia, and that he is now betrothed to someone in India. I accept his claims that he is emotionally close to his family and wants to be physically close to them. I accept the applicant’s evidence that a house was built for him in India when he married, and that he also has land and savings in a bank account. I note also that in March 2022 the applicant provided an architect’s valuation of a house owned by his mother, as well as bank account information. There is no evidence that the applicant has any current employment ties to India, although I am prepared to accept that he has relatives who work in the construction industry, with whom he could work in the future. I accept that the applicant has family, community and property ties which would serve as a significant incentive for him to return to his home country, and I take this into account in assessing his circumstances as a whole.

11. I make no adverse findings regarding the applicant’s economic circumstances. In assessing his economic circumstances, I take into account his evidence of his own assets, as well as those of his family, in India. I also take into account his evidence that he has not worked in Australia since he lost his work rights under his Bridging visa (in May 2022). There is insufficient evidence before the Tribunal of economic circumstances that would present as a significant incentive for the applicant not to return to his home country.

12. I make no adverse findings regarding the applicant’s reasons for not undertaking the proposed study in his home country rather than Australia. I accept the applicant’s oral evidence that he attempted to study English for three months in India prior to arriving in Australia but could not make progress with those studies. I have also had regard to the information provided in his statement of 15 December 2021, in which he stated that he believes it would be an advantage to study English in Australia. He claims that Australian qualifications are globally recognised, and that students can improve their communication skills as well as complete their education. He claims that Australia is a world leader in education. He claims that Australia is a multicultural and safe environment for study. He claims that the level of English training in India is not as advanced as in Australia. The same claims are made in the GTE statement the applicant provided to the Department. I accept that the applicant has provided reasonable reasons for not undertaking the proposed course of study in his home country.

13. There is no evidence of any military service requirements or of any civil or political issues which would act as an incentive for the applicant to remain in Australia. There is no adverse evidence before the Tribunal regarding the applicant's circumstances in India, relative to others in that country, and the Tribunal makes no adverse findings in relation to these factors.

    The applicant’s potential circumstances in Australia

14. The applicant first arrived in Australia on 25 July 2019, holding a Student visa as a dependant of his wife. The applicant gave evidence that his relationship with his wife ended soon after his arrival in Australia and they have since divorced. The applicant’s Student visa was cancelled on 26 February 2021 and the applicant was granted a Bridging visa A.

15. The applicant applied for the Student visa under review on 26 October 2020. The Student visa was in respect of the applicant’s enrolment in an ELICOS sector course in General English from 2 November 2020 to 31 October 2021, however according to the applicant’s PRISMS records, this enrolment was cancelled on 26 February 2021 due to unsatisfactory attendance. The applicant then enrolled in a further General English course from 17 January 2022 to 15 January 2023, however this enrolment was also cancelled because of unsatisfactory attendance on 23 June 2022. The applicant has since then remained unenrolled. He has provided the Tribunal with a letter of offer from Intellect English, dated 13 July 2023, for a General English course commencing on 7 August 2023 to 1 August 2025.

16. The Tribunal notes that the applicant has not successfully completed any courses of study since applying for the Student visa in October 2020, despite being enrolled in two ELICOS courses of relatively short duration (12 months). According to his PRISMS records, both enrolments were cancelled because of the applicant’s unsatisfactory attendance.

17. While I have had regard to the explanations provided by the applicant at the hearing, in his statement of 15 December 2021 and in the submission of his agent of 15 July 2023, I do not consider the applicant has provided a sufficient or reasonable explanation for his lack of course progress to date and for remaining unenrolled for such a lengthy period of time. I have considered the submissions by the applicant’s representative that:

    As a consequence of having his substantive visa cancelled, it is likely, that his visa status from that moment onwards would have been one which would not have had study rights. Furthermore, due to his visa cancellation, his CoE for his course was also cancelled.

18. I do not accept this submission. As noted, the applicant’s dependant Student visa was cancelled on 26 February 2021. His movement record indicates that he continued to hold a Bridging visa A until 26 October 2021, for which the only recorded restriction was Condition 8104, which prevented him from working more than 40 hours per fortnight. This is over 14 days after the applicant’s first enrolment in General English was cancelled on 7 October 2021 because of unsatisfactory attendance. I find the applicant’s evidence regarding the reasons for the cancellation of this first enrolment in General English to be vague and unconvincing and prefer to accept the evidence contained in his PRISMS record, namely that his enrolment in General English was cancelled due to unsatisfactory attendance at a time when the applicant still had full study rights.

19. I have considered the evidence of study which the applicant provided following the hearing. In an email dated 3 October 2023, the applicant’s representative states that the applicant has attempted on numerous occasions to contact his former college to obtain evidence of his attendance, but they have been of no assistance to him, and that in lieu of evidence directly from his former college, he has submitted evidence of coursework to demonstrate his attendance at this course. The applicant has provided three attachments which contain work sheets dated from various dates in January, February and May 2021, dates in January, February and March 2022, as well as undated pages. While these indicate the applicant commenced each course and attend some classes, there is nothing to indicate that he attended each course for any more than a few months. These study notes are therefore insufficient to overcome my concerns that both of his enrolments were cancelled because of unsatisfactory attendance.

20. I have also considered the submission from the applicant’s agent that his second enrolment in General English was cancelled after the applicant received a negative outcome in his application to the Tribunal and because he did not have sufficient study rights. I note however that the applicant’s movement records, which are supported by the Bridging visa information provided by the applicant, indicate that from 26 October 2021 until 13 May 2022, Condition 8201 was attached to his Bridging visa and he had limited study rights to study up to 3 months. According to notes the Department recorded in ICSE, he was counselled by the Department on 16 October 2021, with the assistance of an interpreter, that if his application for review was not determined after three months, he would need to apply for another Bridging visa E to be considered for further study. I consider that the applicant was made aware of the option that he could apply for another Bridging visa to continue his English studies. The applicant acknowledges this in his statement to the Tribunal, dated 15 December 2021, in which he states:

    I have enrolled in General English (Beginner to Advanced) program that starts on 02/11/2020 and was due to end on 31/10/2-21. Unfortunately due my visa cancelation [sic] by my ex-wife my college cancelled my COE when they came to know and I was not able to do progress in my course. Now I have re-enrolled but I have 3 month study rights and I will be re-applying for study rights [Tribunal’s emphasis].

21. There is however no indication in the ICSE notes that the applicant applied to the Department for a change to his Bridging visa to give him study rights. Rather, the Department’s notes in ICSE indicate that on 30 June 2022 he applied to the Department for permission to work.

22. I find that the applicant was aware that he could apply to the Department for a change to his Bridging visa conditions to allow him to study, but chose not to do so, and instead applied for work rights in June 2022. I therefore give little weight to the applicant’s claims regarding the reasons why he could not continue with his courses of study and why he had such a lengthy gap with no enrolments, was because he had no study rights. I have also taken into account the submissions from his agent, including claims regarding the COVID-19 pandemic, the breakdown of the applicant’s relationship with his wife and the applicant receiving misleading advice from another agent. However, even when I consider all of the applicant’s stated explanations cumulatively, I am not satisfied that the applicant has provided a reasonable explanation for his enrolment and academic history.

23. Given the applicant has not successfully completed any courses of study since applying for the Student visa, and given the cancellation of two of his enrolments because of unsatisfactory attendance, I have concerns that the Student visa may be used to maintain ongoing residence and to circumvent the intentions of the migration programme.

24. I make no adverse findings regarding the applicant’s ties with Australia. I accept that the applicant is divorced from his wife, with whom he travelled to Australia as a dependant. I also accept that the applicant has no family or assets in Australia. I accept the claim in his s.359(2) response that he has no community ties in Australia. There is no evidence before the Tribunal to suggest that the applicant is currently working, and I therefore accept his claim that he ceased working as a cabinet maker when he lost his work rights in May 2022. There is no evidence to suggest that the applicant has any employment ties to Australia or has been building a career in Australia.

25. Given the length of time the applicant has remained in Australia, I make no adverse findings regarding his knowledge of living in Australia. Given the applicant has previously been enrolled in General English courses and commenced these courses, I make no adverse findings regarding his knowledge of his current course or education provider. There is no evidence before the Tribunal to suggest the applicant has entered a relationship of concern for a successful Student visa outcome, and I make no adverse findings about this condition.

    Value of the course to the applicant’s future

26. The applicant claims that after he completes his proposed course in General English in August 2025, he will return to India, where he will look for work as a cabinet maker or work with his cousins in the construction industry, which may also involve him starting a business with them. In his oral evidence, the applicant gave very vague and general evidence regarding the value of the proposed course of study to his future. He stated that English will assist him to work and to explain himself. He stated that as an international language, it will help him communicate with people when he sets up a business. He claimed that people who speak English are considered educated, respected and gain trust from people, which will get him more work.

27. I have also considered the applicant’s claims in his statement of 15 December 2021, where he claims that the proposed course will enhance his language and communication skills in an international context. He claims that he should have good knowledge of English to be competitive at a global level. He notes that while he worked as a cabinet maker in Australia, he often found it difficult to speak in English or to express himself. He claims that organisations in India and other countries look for multilingual candidates who have good communication skills, and that the proposed course will also help build his confidence. He claims that when he returns to India, he will look for jobs with companies dealing with kitchen interiors and fixtures. He also states that he will start his own cabinet making business in India, where he can easily earn 10 to 12 lakhs per year. The applicant makes some of the same claims in his earlier statement which he provided to the Department on 2 January 2021, as well as very brief claims in the completed ‘Request for Student Visa Information’ form provided as part of his s.359(2) response to the Tribunal. I have also taken into account the submission of the applicant’s agent of 15 July 2023, which submit that the applicant has a genuine need to study English before returning to India, and that having English skills will open doors to employment opportunities.

1. I accept that the applicant has completed Year 10 in India and commenced studies towards Year 12 but did not complete the qualification. I also accept that the applicant has a low level of English language skills, and therefore accept that the course is consistent with his current level of education. While I also accept that English is an international language, and having English language skills may open up job opportunities for people in a number of different fields, I am concerned that the applicant’s proposed studies of two years will provide only marginal improvement to the applicant’s employment and business opportunities over and above the existing experience he has in cabinet making. I have considered his claims that having English language skills will help him to communicate with people from other parts of India as well as with international markets, though again, I am not satisfied that this will provide more than marginal improvement to his future employment or business operations. I am also not satisfied that the applicant has demonstrated the relevance of having English language skills to working as a cabinet maker, or owning a cabinet-making business, in India. I am also not satisfied that the applicant’s remuneration in his home country will improve as a result of gaining the proposed qualifications, and find the evidence he has provided of his potential remuneration in India to be of a general nature and not supported by any evidence of research. The Tribunal is not satisfied, on the evidence provided, that the proposed course of study will be of value to the applicant’s proposed future plans.

   The applicant’s immigration history

2. As noted above, the applicant arrived in Australia in July 2019, holding a Student visa as a dependant of his then wife. The applicant’s relationship with his wife ended, and on 26 October 2020 he applied for the Student visa under review as the primary visa applicant. The Student visa was in respect of the applicant’s enrolment in an ELICOS sector course in General English from 2 November 2020 to 31 October 2021. According to the applicant’s enrolment records from the PRISMS database, the applicant has held two previous enrolments in General English, both of which were cancelled due to unsatisfactory attendance. While I have considered the applicant’s arguments about why he has not completed any courses of study, for the reasons set out above, I do not consider that he has provided a sufficient or convincing explanation. I prefer to accept the information contained in his PRISMS record, which indicates that both of his previous enrolments were cancelled due to unsatisfactory attendance. While I have considered the study notes which the applicant provided after the hearing, I do not consider these to be sufficient to address the concerns raised by his PRISMS record or to support his claim that he maintained satisfactory attendance in his courses of study.

3. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. The Tribunal finds that the applicant first applied for the Study visa as a primary applicant approximately three years ago, but since that time has not successfully completed any courses, despite having enrolled in relatively short ELICOS courses. I do not accept his claims that he was unable to study because of his visa conditions and note in particular that he was counselled by the Department, with the assistance of an interpreter, as his options for applying for a change to his Bridging visa conditions to allow him to study. The applicant himself acknowledged that he was aware of this option in his 15 December 2021 statement, where he states ‘I will be re-applying for study rights’. Despite this, in June 2022 the applicant applied to the Department for a change to his work rights, without making a similar request for study rights. I find that the applicant has been in Australia for some time without successfully completing a qualification, and that he does not have a sufficient or compelling explanation for this poor academic history. Given his enrolment and visa history as a whole, I am concerned that the Student visa may be used primarily to maintain residence. The Tribunal gives weight to the applicant’s circumstances that indicate that the Student visa is intended primarily for maintaining residence in Australia. I have considered the applicant’s claim that he now wishes to complete a course in General English before returning to his home country but consider the applicant has already had sufficient opportunity to undertake such a course.

4. I do not make adverse findings regarding the remaining factors relevant to the applicant’s immigration history. There is nothing to indicate that he has an adverse visa or migration history to any other country. While the applicant’s dependent Student visa was cancelled in February 2021, I accept that it was cancelled because he was no longer a member of the family unit of his ex-wife and that he is now divorced. There is nothing to indicate that the applicant has had any previous visa applications refused. There is no information before the Tribunal to indicate that the applicant has not complied with the conditions of his visas. There is nothing to indicate that he has any other applications for a different class of visa which are yet to be finally determined. However, for the reasons provided above, I have significant concerns regarding the factor at clause 14(b)(iii) of Direction No. 69.

   Any other relevant matters and conclusion regarding findings

5. The Tribunal has also given regard to whether there are any other relevant matters and finds there are no other relevant matters to the assessment of the applicant's intentions to stay in Australia temporarily in addition to the matters covered above. The Tribunal has considered all the information provided by the applicant in support of the application.

6. 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).

7. 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.

8. 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

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

   Frank Russo
   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.