Rawat (Migration)

[2019] AATA 1426

Rawat (Migration) [2019] AATA 1426 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sangmitra Rawat

CASE NUMBER:  1814317

HOME AFFAIRS REFERENCE(S):           BCC2018/1165729

MEMBER:Mark Bishop

DATE:15 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 January 2019 at 12:03pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – does not genuinely intend to stay temporarily in Australia – did not engage in study – failed to complete courses since arrival – personal issues – minimal evidence of incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212, 500.218, 500.312, Conditions 8202, 8516

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 27 April 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 12 March 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.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal It contained a record of her academic, visa and immigration history. It contained a copy of the applicant’s PRISMS record. The applicant advised the Tribunal she did not challenge the findings of the delegate. See paragraphs 11 to 13 and 29 to 35 hereunder.

5. The applicant appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

   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.

   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 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.

11. The Tribunal asked the applicant if she challenged the findings of the delegate. The applicant advised she did not.

12. The Tribunal asked the applicant if she wished to address the Tribunal. The applicant advised she came to Australia to study. A pre-existing relationship broke up. She did not attend college or engage in any study. She was unable to concentrate on studies and did not even pass a single subject. She felt unable to study prior to her marriage. She has not resumed her studies. She is not studying. She is not currently enrolled in a course of study.

13. The Tribunal asked the applicant is she wished to make or provide a statement as to her visa history (inclusive of conditions) to the Tribunal. The applicant advised she did not wish to make a statement to the Tribunal as to her visa history or conditions attached to her visa. The applicant advised she worked for six months as a housekeeper after first arrival in Australia. Thereafter she did not work or study. She relied upon remittances from India to live in Australia.

14. The applicant provided a brief submission to the Department. It outlined the following:

    ·She married his on 12 July 2017;

    ·She met her husband at Holmes Institute and he proposed to her;

    ·The parents of both parties met in India;

    ·The couple were married on 12 July 2017 in the presence of two friends Sanchit Rana and Chitwan Kaur Chadha.

15. Sanchit Rana and Chitwan Kaur Chadha provided statutory declarations that they attended the wedding ceremony.

16. Vinayk Kaushik and Akwinder Kaur provided statutory declarations they have visited their house and they are great as a couple.

17. The applicant’s provided a statutory declaration from persons who self-identified as parents of the applicant that advised the marriage of their daughter was solemnized on 12 July 2017. The Tribunal notes there is no evidence the self-identified parents attended the ceremony or observed the ceremony in any way. The applicant advised she did not telecast or webcast the wedding ceremony back to India.

18. The applicant provided copies of photographs of four people said to be of a wedding ceremony.

19. On 17 December 2018 the Tribunal wrote to the applicant in the following terms:

    ·In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    ·We will assess whether you are a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa. Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

    ·Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa by referring to Direction No. 69.

    ·Please note, in determining whether you are a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, we may also have regard to cl.500.312(b) of Schedule 2 to the Regulations. This clause requires that you intend to comply with any conditions subject to which the visa is granted, having regard to your record of compliance with any previous visa conditions and your stated intention to comply with any conditions to which the visa may be subject. Please be prepared to answer any questions the Tribunal may have on this issue and provide any supporting information or documents you may wish to provide to the Tribunal.

20. The Tribunal formally advised the applicant in writing well before the hearing date it would pursue issues relating to cl.500.312 (a) and (b) of Schedule to the Migration Regulations.

21. The applicant did not respond to this request for information. The applicant did not address cl.500.312 of Schedule 2 to the Migration Regulations.

22. The applicant did not make a submission in any form to the Tribunal. The applicant did not provide any material or information to the Tribunal that addressed the request in paragraph 12 above. In response to questions from the Tribunal the applicant advised she did not wish to make any comment about her visa or conditions attached to her visa.

23. The applicant did not provide any Certificates of Graduation or Completion of any courses in Australia. The applicant did not provide any Statements of Attainment or academic transcript that outlined course progress in any way for any period of study. The applicant did not provide any information or documentation relating to her husband’s enrolment in any course of study or his progress, if any in that or past courses of study. In evidence the applicant advised she had not engaged in any study at any time since her arrival in Australia.

24. At this point is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the 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 applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

25. There is minimal information before the Tribunal. At the conclusion of the hearing the Tribunal asked the applicant if she wished to make any comment. The applicant advised she did not wish to make any further comment to the Tribunal.

26. In considering whether the applicant meets the genuine temporary entry criterion the Tribunal had regard to the following factors, consistent with clause 500.312 and Ministerial Direction No 69. The factors were used to weigh up the applicant's circumstances as a whole, in reaching a finding about whether she satisfies the genuine temporary entrant criterion.

27. The Tribunal has given regard to the applicant’s circumstances. The Tribunal has reviewed the application for a student visa TU500 which was lodged on 12 March 2018.

28. The information outlined hereunder in paragraphs 29 to 35 is taken from the decision record provided to the Tribunal by the applicant. The Tribunal notes the applicant did not challenge this information in any way. See paragraphs 4 and 11 to 13 above. 

29. The applicant has applied to be a dependant student visa holder with a prospective visa grant until 15 March 2019.The applicant arrived in Australia on 20 February 2016 holding a TU573 student visa (as the primary visa holder – the person enrolled to study). That visa was granted based on her enrolment in Master of Business Administration (Professional Practice).

30. The applicant advised the Tribunal she held a Bachelor and Master of Commerce from a university in India and had worked in human resources management post her university education.  She advised her father held senior positions in Banking. The applicant’s initial student visa was granted under the streamlined visa processing (SVP) arrangements and was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa. One of the primary criteria for the grant of the previous student visa is that the applicant must be studying an eligible course at an eligible education provider.

31. The student visa was granted in order for the applicant to undertake the principal course Master of Business Administration (Professional Practice) at Charles Darwin University. However examination of the applicants study history as outlined in the decision record and confirmed as correct by the applicant in evidence to the Tribunal indicates the applicant’s enrolment was cancelled by the education provider on 14 September 2016 due to ‘Student Notifies Cessation of Studies’, (as per provider comments – “CDU campus Melbourne. PASSIVE WITHDRAWAL - Student did not enrol in any units by the last date to enrol.”

32. The applicant then commenced study in Master of Professional Accounting on 26 September 2016 at Holmes Institute. The applicant’s enrolment was cancelled by the education provider on 30 August 2017 due to ‘Student Notifies Cessation of Studies’, (as per provider comments – “Did not re-enrol in the compulsory study period”).

33. On the 5 October 2016, the applicant then enrolled in study in Master of Business Administration at Holmes Institute. The enrolment was cancelled by the education provider on 30 August 2017 due to “Change to COE/Student Details”, (as per provider comments – “Non-Commencement of Studies”).

34. On two occasions during the hearing the Tribunal sked the applicant to address her visa and conditions attached to her visa. On each occasion the applicant declined to make any comment to the Tribunal.

35. As the applicant was not studying an eligible course at an eligible education provider this clearly indicates that she has not complied with visa condition 8516.

36. Furthermore, the applicant was not enrolled in study in higher education from 30/08/2017 to 15/03/2018. The applicant has not complied with conditions of her visa (condition 8202 continues studying).

37. The Tribunal has also taken into account economic circumstances in the applicant’s home country relative to their potential economic circumstances in Australia. The applicant has not provided any substantial evidence of close ties to her home country (excluding ties of family as outlined in paragraph 30 above). She has been unable to demonstrate substantial economic ties or personal assets in her home country which diminishes her incentive to return to India. Furthermore, given the disparity in the economic circumstances between India and Australia, the Tribunal cannot be satisfied she has significant incentive to return to India. The applicant now resides with her husband in Melbourne. She advised she wished to remain with her husband. While she has personal ties in the form of extended family, the Tribunal finds that these ties do not, of themselves, constitute a strong incentive to return home when considered against failing to provide strong economic and personal circumstances in India. The Tribunal is concerned that her intention to live in Australia is motivated by factors other than study.

38. The Tribunal has given regard to 500.212(a) (iii), which applies to applicants who are minors (i.e. under 18 years of age). As the applicant is over 18 years of age, this aspect is not relevant to the tribunal decision.

39. The Tribunal has given regard to whether there is any other relevant matter and find that no other matter is relevant to assessment of the applicant’s intentions to stay in Australia temporarily. The Tribunal has considered all of the information provided in support of the application. On balance, the Tribunal is not satisfied that the information provided regarding the applicants circumstances in her home country, potential circumstances in Australia, the value of the proposed courses to her future, her immigration history and other relevant matters are sufficient to demonstrate that she is a genuine temporary entrant.

    Conclusion on cl.500.212

40. 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.

41. 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

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

    Mark Bishop
    Member