Navjot Kaur (Migration)

[2024] AATA 1069

Navjot Kaur (Migration) [2024] AATA 1069 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss  Navjot Kaur

CASE NUMBER:  2300068

HOME AFFAIRS REFERENCE(S):          BCC2021/1792015

MEMBER:David Thompson

DATE:29 April 2024

PLACE OF DECISION:  Perth

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

Statement made on 29 April 2024 at 11:56pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – applicant changed courses and providers multiple times – value of courses to benefit future career – family ties in home country – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363, 499; Direction Nos 69, 108
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 14 December 2022 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 15 September 2021. 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. On 18 September 2023 the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the review applicant to provide information sufficient to satisfy the Tribunal that she was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student. A copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ was included with the Tribunal’s letter, as a means of giving specific details about the information the Tribunal required.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 2 October 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide the information within the prescribed period and no extension was sought or granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 meets the requirements of cl 500.212.

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

9. 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.

   Evidence

10. Upon the applicant’s lodging of her review application, the Tribunal obtained the Departmental file on the applicant’s visa application. That file contains some relevant documents provided by the applicant, which I have considered in reaching my decision. They are:

    a.the applicant’s student visa application, lodged on 15 September 2021;

    b.a letter of offer dated 14 September 2021 from Victorian Institute of Technology to the applicant, offering her enrolment in a package of hospitality courses;

    c.Confirmation of Enrolment (CoE) C82AAF34, recording the applicant’s enrolment in a Certificate III in Commercial Cookery scheduled to run from 4 October 2021 to 2 October 2022;

    d.CoE C82AB423, recording the applicant’s enrolment in a Certificate IV in Commercial Cookery scheduled to run from 10 October 2022 to 16 July 2023;

    e.CoE C82AB836, recording the applicant’s enrolment in a Diploma of Hospitality Management, scheduled to run from 24 July 2023 to 28 January 2024;

    f.a document prepared by the applicant, entitled ‘Statement of Purpose’, undated;

    g.identification pages from the applicant’s Indian passport;

    h.CoE D4A5A059, recording the applicant’s enrolment in a Certificate III in Commercial Cookery scheduled to run from 12 September 2022 to 10 September 2023;

    i.CoE E5274430, recording the applicant’s enrolment in a Certificate IV in Commercial Cookery scheduled to run from 9 October 2023 to 5 May 2024;

    j.CoE D4A5F572, recording the applicant’s enrolment in a Diploma of Hospitality Management, scheduled to run from 6 May 2024 to 22 December 2024.

11. In this case, the only evidence provided by the applicant to the Tribunal was a copy of the delegate’s decision record and notification letter, both dated 14 December 2022. The Tribunal has obtained copies of the applicant’s record from the Provider Registration and International Student Management System (PRISMS) and her movement record, and I have relied on those documents purely to amplify the statements made in the applicant’s Statement of Purpose and visa application, mentioned above.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘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.

13. 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.

    Consideration

    Background

14. On the basis of the limited evidence before me, I make the following findings of background fact:

    a.The applicant is a citizen of the Republic of India, and is 25 years old at the date of this decision.

    b.The applicant completed her secondary schooling in India, and afterwards pursued a Diploma of Business whilst in India from the Australian Technical and Management College.

    c.She first came to Australia on 1 July 2019, as the holder of a TU-500 student visa valid until 15 September 2021. At that time, she was enrolled in a Bachelor of Business course at the University of the Sunshine Coast.

    d.She experienced difficulty progressing in that course, and experienced further difficulties as a result of the COVID-19 pandemic. She therefore left that course and enrolled in a Commercial Cookery course at an institution she identifies only as ACOT.

    e.From ACOT, the applicant moved to study similar courses at a course provider she identifies as Angad Australian Institute of Technology.

    f.The applicant then left that course provider and on or about 15 September 2021 enrolled with the Victorian Institute of Technology, in a package of courses comprising:

    i.Certificate III in Commercial Cookery, scheduled to run from 4 October 2021 to 2 October 2022;

    ii.Certificate IV in Commercial Cookery, scheduled to run from 10 October 2022 to 16 July 2023; and

    iii.Diploma of Hospitality Management, scheduled to run from 24 July 2023 to 28 January 2024.

    g.The applicant applied for a further student visa on 15 September 2021.

    h.On or about 27 July 2022, the applicant enrolled in a similar package of hospitality courses at Australian Vocational Education & Training Academy, scheduled to run as follows:

    i.Certificate III in Commercial Cookery – 12 September 2022 to 10 September 2023

    ii.Certificate IV in Commercial Cookery – 9 October 2022 to 5 May 2024; and

    iii.Diploma of Hospitality Management – 6 May 2024 to 22 December 2024.

    i.On 14 December 2022 the applicant’s student visa application was refused.

    The applicant’s circumstances in her home country

15. In her visa application, the applicant declared that she had family members (her parents and some of her siblings) living in India, and that she has never been married. There is no evidence before me as to whether or how often the applicant contacts her family in India. Nor is there any evidence before me as to any community ties the applicant might have in her home country. Whilst I am prepared to find that the presence of family members in India in itself gives the applicant some incentive to return to that country once she finishes her studies in Australia, I am unable on the evidence before me to find that such incentive is a significant incentive to return. There is no evidence before me to suggest that the applicant has any other personal ties to her home country.

16. There is no evidence before me to suggest that the applicant has any economic ties to her home country, either in the form of past employment or property of any kind. That being said, there is no evidence to suggest that the applicant has any economic incentive to avoid returning there.

17. There is no evidence as to any military service obligations the applicant may or may not have to perform on her return to India (although given such evidence there is as to her circumstances, such obligations seem unlikely). There is nothing before me that would shed any light on any concerns the applicant may or may not have regarding civil or political unrest in her home country.

18. There is nothing before me to suggest that the applicant gave any thought at all to the possibility of undertaking hospitality studies in her home country. In her statement of purpose, she speaks in very general, generic, terms about the advantages of the Australian education system, but does not touch on the availability of courses in her home country. I am not satisfied that the applicant has any strong reason for deciding to remain in Australia to engage in hospitality studies.

19. Overall, there is insufficient evidence before me regarding the applicant’s circumstances in her home country to allow me to find that they provide any real support for the applicant’s case.

    The applicant’s potential circumstances in Australia

20. The applicant has provided no evidence at all that would allow me to form any view as to any personal ties she might have, or lack, to Australia. Nor has she provided any evidence as to her economic situation in this country.

21. There is no evidence before me to suggest that the applicant has entered into any relationship of concern in Australia, in the sense of a relationship contrived or contracted to improve her chances of remaining in Australia. Nor is there any direct evidence that she is attempting to use the student visa system to maintain residence, or is attempting to circumvent the Australian migration programme in any other way.

22. The applicant has provided no evidence whatsoever regarding any preparations she might have made for life and study in Australia. That is not, perhaps, particularly significant given that she resided in this country for approximately 2 years before making the visa application the refusal of which gave rise to this review application. Nor has she provided any information as to the manner in which she chose her current course provider (or, indeed, why she left Victorian Institute of Technology). Her Statement of Purpose gives an explanation for earlier changes of course provider, which was (in essence) that her earlier providers failed to make practical experience available. She attributed this to the conditions prevailing during the COVID-19 pandemic, which is reasonably plausible. There is no reason apparent on the evidence to suppose that this was the reason for her most recent move, however.

23. I find that the evidence (such as it is) regarding the applicant’s potential (or indeed, actual) circumstances in Australia neither supports nor detracts from the applicant’s case.

    The value of the applicant’s courses

24. The applicant has stated that she completed her secondary schooling in India. It is unclear whether she completed the Diploma of Business mentioned in paragraph 14(b) above. It is therefore impossible to say whether the applicant has advanced in her level of study whilst in Australia. It is, however, clear that the applicant has changed her area of study to the very different area of hospitality.

25. The applicant has stated in her Statement of Purpose that her plan on completing her studies in Australia is to return to India and find some kind of position in the hospitality sector. She does not identify any particular kind of position she might seek, and says nothing about the level of remuneration she might earn. Nor does she mention any concrete steps she might have taken to identify or obtain such a position. This part of the applicant’s statement barely rises above the purely generic.

26. On the evidence before me, it is impossible to form any view as to whether the applicant’s courses have value for her in her home country. I am therefore unable to find that they do.

    The applicant’s immigration record

27. There is no evidence before me to suggest that the applicant has ever previously been refused a visa, or has had any visa issued to her cancelled. Nor is there any evidence to suggest that the applicant has any other Australian visa application on foot at the date of this decision. There is no evidence to suggest that the applicant has breached the immigration laws of any country. I note, however, that the applicant stated in her visa application that she had not visited any other countries in the past 10 years, and there is nothing before me to suggest otherwise.

28. I find that the applicant’s immigration history neither supports her claim to intend genuinely to remain in Australia temporarily, nor detracts from it.

    Conclusion on cl 500.212(a)

29. On the basis of the above, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a). As this is necessary if the applicant is to meet the requirements of cl 500.212 overall, there is no point in considering the requirement of sub-clause (b). As regards sub-clause (c) of cl 500.212, it suffices to say that no other relevant matter arises on the evidence before me.

30. Accordingly, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

31. Given the above findings, I find 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

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

    David Thompson
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 - ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security, give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil
    Minister for Home Affairs and Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    Interpretation

    Act means the Migration Act 1958.

    Finally determined has the same meaning as is set out in subsections 5(9) and (9A) of the Act.

    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 against the genuine temporary entrant criterion for Student visa applications and Student Guardian visa applications (as applicable).

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

    This Direction applies in relation to Student visa applications and Student Guardian visa applications made before 23 March 2024 but not finally determined on that date, including such visa applications that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Student visa and seek to satisfy the primary or secondary criteria, or an application for a Student Guardian visa and seek to satisfy the primary criteria.

    Note: Direction No. 106 applies in relation to Subclass 500 (Student) visa applications and Student Guardian visa applications made on or after 23 March 2024, including visa applications made on or after that date that are remitted from the Administrative Appeals Tribunal; or the Administrative Review Tribunal, upon its establishment; or a Court.

    Preamble

    The Australian Government operates a student visa program 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 program 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 - 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 or Student Guardian 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 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.

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

    iv.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;

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

    vi.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

    vii.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 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.