Navjot Singh (Migration)

[2019] AATA 3095

Navjot Singh (Migration) [2019] AATA 3095 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navjot Singh

CASE NUMBER:  1808648

HOME AFFAIRS REFERENCE(S):          BCC2018/845033

MEMBER:Damian Creedon

DATE:24 June 2019

PLACE OF DECISION:  Perth

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

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 24 June 2019 at 5:54pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – genuine applicant for entry and stay as a student– family ties to home country –presently enrolled in a course of study – a credible witness – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218

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 20 March 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 February 2018. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant was assisted in relation to the review by their registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 satisfies cl.500.212(a).

2. 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?

1. 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.

2. 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.

Overview of evidence

1. The applicant is a 26-year-old Indian national who first arrived in Australia on 16 October 2014 as the holder of a Student (subclass 573) visa.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

3. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) record shows that since his arrival onshore he has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
General and Academic English	03/11/2014	27/01/2015
Certificate IV in Web Based Technologies	02/02/2015	26/06/2015
Certificate IV in Business	20/07/2015	11/12/2015
Diploma of Business	01/02/2016	01/07/2016
Diploma of Leadership and Management	05.09/2016	04/06/2017
Certificate IV in Commercial Cookery	05/06/2017	04/11/2018

1. The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

2. The applicant was assisted in relation to the review by their registered migration agent.

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

Analysis and findings

1. The Tribunal found the applicant to be a credible witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention.

2. At the outset of the hearing the Tribunal discussed with the applicant his current enrolment status.  In his oral evidence the applicant confirmed that he had recently completed a Diploma of Hospitality Management at Perth College of Business and Technology that he had started on 5 December 2018.  The applicant produced to the Tribunal a letter from Perth College of Business & Technology dated 15 April 2019 under the hand of the Principal Executive Officer of the college.  The letter confirms the applicant’s enrolment in a Diploma of Hospitality Management with a start date of 5 December 2018 and a (then) expected end date of 4 June 2019.  The applicant also produced to the Tribunal a Confirmation of Enrolment Certificate (CoE) evidencing his enrolment in the Diploma course.  There is no evidence before the Tribunal to doubt the authenticity of the letter or the (then) currency of CoE presented by the applicant.  The applicant also produced to the Tribunal a CoE for a three-year Bachelor of Business degree at Christian Heritage College, Brisbane.  The CoE was produced by the applicant to corroborate his oral evidence that he is enrolled to commence that course on 15 July 2019.  There is no further or other evidence before the Tribunal to suggest that it should conclude otherwise.

3. The Tribunal is, accordingly, satisfied that the applicant is presently enrolled in a course of study meeting the requirement of cl.500.211(a) of Schedule 2 to the Regulations.

4. The Tribunal raised with the applicant its concern, shared by the delegate, that the applicant’s study history appears on its face to lack clear focus and a logical narrative.  The applicant stated that, upon finishing high school in India, he was attracted to the prospect of international study as many of his friends intended applying to study in Australia.  He claimed that he chose Australia on the recommendation of his cousin and for its reputation in the education field.  The applicant stated that when he first arrived onshore he did not have a clear study or career goal in mind.  He stated that after he successfully completed his studies in General and Academic English he undertook a Certificate IV in Web Based Technologies at the recommendation of his friends.  When asked by the Tribunal why he did not pursue that study pathway despite having successfully completing the course, he stated to the effect that he found the course “very difficult” and felt that he did not have the necessary skill-set to carry his IT studies further and so he changed to a “business” pathway.  When pressed by the Tribunal as to his career goals in making this decision, he stated that, at the time, he had a general goal of setting up his own business in India and felt that these studies would afford him that opportunity.    When asked by the Tribunal why, then, he had then changed his pathway to commercial cookery, the applicant offered two reasons: firstly, he stated that he felt it necessary to obtain practical skills to run a business in addition to the theoretical skills he had obtained from his earlier courses; and secondly, he stated that he wished to move to a pathway that would lead him to a Bachelor’s degree.  When asked by the Tribunal why a Bachelor’s degree was necessary for his future, he stated that, upon his return to India, he wished to work in the hospitality industry but that, without a Bachelor’s degree, he would be unable to obtain work in the competitive labour market there.   When asked by the Tribunal what his career plan is now, he stated to the effect that after obtaining his bachelor’s degree he intends to return to India to seek employment in “5-star hotels or restaurants” as a chef or manager and to save money to invest in starting his own business.  When pressed by the Tribunal, the applicant showed a reasonable understanding of the current state of the relevant labour market in India.  The applicant’s evidence is that he has focussed on his studies since he has been in Australia and wishes to obtain a bachelor’s degree before returning home.  He stated that he finally settled upon his course provider in Brisbane only after visiting the campus in October 2018 and he provided the Tribunal with evidence of his travel to Brisbane to do so. 

5. The applicant’s evidence is that his parents reside in India and he has one older brother who is working in Sydney.  The applicant stated that he has not had an opportunity to travel home to visit his family since arriving onshore.  He stated that he had intended to do so in March of this year, however he was unable to obtain leave from his course provider and, moreover, his parents were adamant that he should concentrate on, and finish, his studies first.  The applicant stated that he has worked as a trolley collector, a taxi driver and a cook in Australia but that he is not presently working.  He stated that his family in India are paying his tuition fees and contributing to his living expenses and that he plans to work in accordance with his visa conditions to supplement his living expenses.  This did not raise a concern in the Tribunal’s mind that the applicant is seeking to build a career in Australia.

6. There is no evidence that the applicant has entered into any relationship of concern or that they have significant ties to Australia other than his commitment to his studies. 

7. There is no evidence before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

8. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding his circumstances and genuineness in the presentation of his evidence.  On balance the Tribunal is persuaded by the applicant’s evidence as to his motives in undertaking and continuing his studies and is of the view that two aspects of his history, in particular, act to corroborate him in this respect: firstly, his continuous enrolment, without significant gaps, since his arrival onshore; and secondly, despite a lack of focus in his studies from early 2015 until mid-2017, there is a sense of academic progression since that time, culminating in his current enrolment in a (not inexpensive) three-year bachelor of business degree.  In accepting this evidence the Tribunal is mindful of its obligation to make allowances for reasonable changes to an applicant’s career or study pathways.

9. The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has family ties to his home country and all the other matters he has raised.

10. Overall the Tribunal is not persuaded that the student visa programme is being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.

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

12. 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.

13. 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.

DECISION

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

   ·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon

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.

1. 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 her previous studies or employment; and

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

2. 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

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

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

3. 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 her home country

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

   a.whether the applicant has reasonable reasons for not undertaking the study in her 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 her home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to her home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to her 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 her 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.

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

The applicant’s potential circumstances in Australia

1. 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 her 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 her 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 her proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. 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 her current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in her 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 her 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

1. An applicant’s immigration history refers both to her visa and travel history.

2. 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 her visa and left before her visa ceased, and if not, were there circumstances beyond her 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

1. 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

1. 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.