Na (Migration)

[2020] AATA 3614

Na (Migration) [2020] AATA 3614 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rita Rani Na
Mr Dhruv Kumar

CASE NUMBER:  1837489

HOME AFFAIRS REFERENCE(S):          BCC2018/3465047

MEMBER:Mark Bishop

DATE:31 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicants meets the following criteria for a Subclass 500 (Student) visa:

·     cl.500.212 of Schedule 2 to the Regulations.

· Cl.500.311 of Schedule 2 to the Regulations

Statement made on 31 August 2020 at 11:59am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – return to study after early marriage and raising family – visa, travel and study history – enrolment in further course – incentives to stay or return – similar courses in home country theoretical rather than practical – one sister and her family in Australia – husband and children, community ties and future employment in brother-in-law’s business in home country – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212(a), 500.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 December 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 12 September 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 25 March 2020 in this case the Tribunal formally wrote to the review applicant pursuant to s.359(2) of the Act inviting the review applicant to provide further information to the Tribunal, including information in relation to enrolment: cl.500.211(a).

4. The applicant responded to the Request for Information on 9 April 2020. The applicant consented in writing to the Tribunal resolving the review application on the papers.

5. Ultimately, a decision maker is not required to make the review applicant’s case. It is for the review applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the review applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

8. Clause 500.212 requires as follows:

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

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

   (i)        the applicant’s circumstances; and

   (ii)       the applicant’s immigration history; and

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

   (iv)      any other relevant matter; and

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

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

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

   (c)       of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

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

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

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

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

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

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

    Meaning of ‘Genuine Applicant’

11. As has been often noted elsewhere in many Tribunal decisions while not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning. The Regulations also specify two constituent elements of a genuine student visa applicant.

12. First, an applicant is regarded as a genuine applicant because he or she ‘intends genuinely to stay in Australia temporarily.’ The applicant must demonstrate an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.

13. The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered into with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.

14. Secondly, a genuine applicant is one who ‘intends to comply with any conditions to which the visa may be subject.’ There are several conditions that attach to student visas. The most important of these conditions oblige the visa holder to remain enrolled in a registered course of study, to make satisfactory course progress in their studies, and to attend classes.

15. Furthermore, if the visa holder changes their enrolment, they must avoid ‘downgrading’ to a course that will lead to a qualification of a level that is lower than that of the proposed qualification that resulted in the grant of the visa. These conditions reflect the very essence of being a student.

16. A genuine applicant must demonstrate both an intention to study and an intention to complete a course that is as challenging as the visa grant contemplates.

17. The Tribunal has carefully considered the delegate’s decision record dated 13 December 2018, a copy of which was provided to the Tribunal by the review applicant with the application for review.

18. The applicant provided the following documents to the Department:

    ·GTE Statement dated 12 September 2018 that outlined the following:

    oHer sister and brother in law reside in Australia;

    oHer gap from previous study is 25 years. She married early, could not study raised a family, was a homemaker:

    oSimilar courses are available in her home country. They are lengthy and based on theory. Practical business opportunities are low. She asserts proper exposure and broad knowledge cannot be gained in India;

    oShe asserts the Australian education system emphasizes practical skills. She will gain hands on experience and learn from multicultural people. She will learn and be able to handle her brother-in-law’s food chain efficiently;

    oShe is married and not accompanied by her husband. She has 3 children and is accompanied by one son. Her parents have passed. She partially owns a house with her husband in India. She plans to handle her brother-in-law’s food chain upon return to India.

    oShe anticipates earning 3,50,000 INR to 5,15,000 INR in India (approximately AUD$6,785 to $AUD$10,000 per month);

    oThe figures immediately above are approximately 3 to 5 times higher than market rates as set out in a number of website references provided to the Department by the applicant;

    oShe believes education in Australia will give her good scope in her career;

    oShe does not have any military service commitments in India. She is not aware of any political or civil unrest in India;

    oShe has a comfortable lifestyle in Inia and comes from a middle-class family. Her husband earns a monthly salary and owns some properties;

    oHer sister and brother-in-law reside in Australia;

    oShe outlined the detail of research as to numbers of international students, expenses and living costs, the climate, and provision of internships and laboratories she had done concerning Australia as a study destination;

    oIn Australia she will learn about different cuisines, management techniques and western standards;’

    oIt doesn’t get any better than living in Melbourne. It is the world’s most liveable city. It is highly rated. Se outlined in detail her knowledge of Melbourne.

    oShe chose the Australian School of Commerce after looking at numerous institutions;

    oShe provided detail as to her reasons for studying management and business;

    oShe outlined future employment detail in her brother-in-law’s chain of restaurants in India;

    oShe will not work in Australia;

    oBusiness Plan

    ·Business Photos

    ·Self-Declaration statement that outlined the following:

    ·Statutory Declaration by Brother in Law

19. On 16 April 2020 the Tribunal wrote to the applicant under s.359(2) of the Act with a Request for Information that addressed matters found under Ministerial Direction Number 69 (MD69) and required to be considered by the Tribunal as part of its decision making process. Those matters were as follows:

    ·Personal details;

    ·Hearing Information;

    ·Information about courses undertaken before arriving in Australia;

    ·Information about work experience before arriving in Australia;

    ·Travel details to Australia and home country visits;

    ·Information about travel to other countries;

    ·Visa History;

    ·Enrolment and study in Australia;

    ·Work and expenses in Australia;

    ·Family circumstances;

    ·Information about community ties;

    ·Information about assets;

    ·Information about future plans;

    ·Information about other circumstances.

20. The applicant provided a response to the above Request for Information.

21. In addition, the applicant provided the following material to the Tribunal:

    ·She is currently enrolled in the Australian School of Commerce in Tasmania and lives there with her sister’s family and her son;

    ·She outlined details of her education to date inclusive of COE, authorised absences from study to return home in late 2019, deferral of her studies for four months in the period August to December 2019, shortened times for the course introduced by the education provider and enrolment in a new course, a Graduate Diploma of Management  commencing 15 November 2020 and concluding in November 2021;

    ·She provided copies of academic transcripts for units completed to date;

    ·She provided a copy of a letter dated 6 April 2020 from the Australian School of Commerce that stated her current course, a Diploma in Business would conclude on 5 October 2020;

22. The applicant addressed in some detail matters relating to travel to Australia and a home country visit  in 2019 for a period of five months, her visa history and the fact she currently lawfully resides in Australia as the holder of a Bridging visa, her interrupted academic studies in Australia, her deferment of studies in Australia  and enrolment in a Graduate Diploma in Management from November 2020 until November 2021, her reasons for choosing this education provider (in considerable detail), the fact that similar courses exist in India yet she values the quality of education and flexible curriculum provided in Australia in conjunction with the utility of going through an applied form of education, her continuous enrolment in courses of study since 2019, extensive family ties, assets and income streams from property holdings in her home country and community ties in her home country and a comprehensive employment plan post her studies in Australia.

23. The applicant provided proof of enrolment and detail of academic progress to date.

24. The applicant provided proof of financial capacity.

25. The applicant provided a copy of a current COE.

26. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Conclusion on cl.500.212

27. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

28. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    Secondary Applicant

29. The secondary applicant is the child of the applicant. He is the member of the family unit of a person who holds a student visa and hence satisfied cl.500.311 of the Migration Regulations.

    DECISION

30. The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    ·Cl.500.311 of Schedule 2 to the Regulations

    Mark Bishop

    
    

    Member

    Attachment – Direction No.69

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

    (Section 499)

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

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

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

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

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

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.