Remidi (Migration)

[2020] AATA 3427

Remidi (Migration) [2020] AATA 3427 (26 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dinesh Reddy Remidi

CASE NUMBER:  1907146

HOME AFFAIRS REFERENCE(S):          BCC2019/196217

MEMBER:Amanda Upton

DATE:26 June 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 applicant meets the following criteria for a Subclass 500 (Student) visa:

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

Statement made on 26 June 2020 at 9:23am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – residence in Australia for six years – enrolment in three unrelated courses – latest nursing course of lower level – genuine career change – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cl 500.212(a)

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 March 2019 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 25 January 2019. 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 (the Regulations) because they did not consider the applicant to be a genuine temporary entrant for entry and stay in Australia as a student.

4. The applicant appeared before the Tribunal on 25 June 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

7. 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?

8. 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.

9. 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.

Entry and Visa History

1. The applicant in this case is an Indian male who first arrived in Australia on 2 November 2013. The applicant arrived on a student visa. He has also had a temporary graduate visa during the period from February 2017 to February 2019.

Time Onshore

1. The applicant has returned to his home country once since his arrival in Australia for a period of 45 days in September 2017.

Study History

1. Prior to arriving in Australia, the applicant had completed a Bachelor of Technology (computer science engineering) (2009-2013).

2. Since arriving in Australia, the applicant has completed;

   ·     Masters of Business and Project Management (08/2014 - 06/2016)

3. He has been enrolled in but did not complete;

   ·     Master of Information Technology (2013) – He told the Tribunal that he did not complete the course as he was enrolled in the summer September and had not done some pre-requisite subjects. He claims he then had to change his course.

4. He is currently enrolled in a Diploma of Nursing that commenced in February 2019 and is scheduled for completion in June 2021 according to the confirmation of enrolment. The applicant told the Tribunal however that he does not anticipate staying that long as he does not need to study for the duration of that enrolment period. The applicant has one placement to complete before his course has concluded. This placement has been put off due to CoVid- 19 however the applicant has been told that the education provider expects placements to be available in either September 2020 or January 2021. The applicant will return home after the completion of his placement and hence the completion of the course.

Evidence in Support of Application

1. In support of his application, the applicant has provided;

   ·     Response to s359(2) request from the Tribunal

   ·     Current and future CoE for a Diploma of Nursing

   ·     GTE statement authored by the applicant

   ·     Completion letter for Masters of Business and Project Management

2. The Tribunal has considered these documents, the Delegate’s decision and the evidence given by the applicant in reaching its decision

Applicant’s circumstances in their home country

1. The Tribunal has had regard to the applicant’s circumstances in India as follows;

   Reasons for not studying in home country

   ·The applicant considers Australia study to be world renowned. He is of the view that its vocational and technical education is among the best and most innovative worldwide. He considers that the Australian for the global market.

   ·The applicant says that to study a Diploma of Nursing in India would take three years whereas in Australia he can do it in half the time.

   Personal ties to home country

   ·The applicant’s family all live in India. He keeps in touch with them via the internet and voice calls.

   ·The applicant had an active social life in India. He participated in regular religious programs and cultural events.

   ·The applicant has a house, land and saving in India, the house and land are owned by the applicant. These are currently are being lived in by his family downstairs and the upstairs is rented generating income. The family will stay in the house until the applicant gets married and then they will move back to the family house in the country.

   ·Half of the savings belongs to the applicant and he can access it from Australia

   ·The applicant has returned home one since his arrival in Australia.

   Economic Circumstances in Australia as incentive not to return home

   ·The applicant has worked as a cleaner since 2014. He currently earns approximately $25 000 p/a. During this time the applicant was not able to find work in his area of study so he did temporary jobs that were not relevant to his qualification

   Military service or civil/political unrest concerns in home country

   ·The applicant raises no such concerns.

2. The Tribunal is unable to accept the applicant’s assertion about study in his home country being of a different quality than Australia, it is a bare claim made without evidence. The Tribunal accepts however that there is some benefit in the fact that the course is shorter in Australia than it would be in India.

3. The Tribunal does not consider that the applicant has any property or significant assets that constitute economic ties to either India or Australia. The Tribunal, however, considers that the applicant’s employment history in Australia provides an economic incentive to remain in Australia.

4. The Tribunal acknowledges that the applicant has family ties to India however does not consider them to be a significant incentive to return considering the amount of time that the applicant has spent onshore in Australia.

5. The Tribunal is troubled by the amount of time that the applicant has remained in Australia, currently 6 ½ years. The fact in and of itself is indicative of an intention to remain in Australia on a more permanent basis. The applicant was asked about this during the hearing and his response indicated that he had changed career course as he had been unable to find work in the area of his study. This has resulted in an extended period of time in Australia. The Tribunal found the applicant’s evidence  to be a genuine and convincing when explaining this.

Applicant’s potential circumstances in Australia

1. The Tribunal has had regard to the applicant’s potential circumstances in Australia, based on the evidence provided at the hearing, as follows;

   Applicant’s ties with Australia

   ·The applicant has no family ties to Australia

   ·The applicant has a social group in Australia

   Evidence visa program being used to circumvent the migration program

   ·The applicant has been enrolled in three courses that are of an inconsistent subject matter. His current course is at a level significantly below his previous qualifications and enrolments.

   Applicant’s knowledge of living in Australia, their intended course and level of research into their intended course.

   ·The applicant chose the course as he considers the education provider to be a quality provider with a high rating for quality of delivery.

2. The Tribunal does not consider that the applicant has significant family ties to Australia that would constitute an incentive to remain. The Tribunal however notes the length of time that the applicant has remained in Australia and considers that he inevitable has developed some ties to his lifestyle onshore.

3. The Tribunal considers that the applicant’s study history, that being significantly different subjects at different levels over a period of time may be an indication that the applicant is using the visa program to circumvent the migration program however, the Tribunal is satisfied with the applicant’s response as to why he has been in Australia for so long and is satisfied that the applicant has had a genuine career change for which he is studying.

4. When asked to comment on the Tribunal concerns as to the value of the course to his future, the applicant stated; that he considers the Diploma to be a high level qualification in India, that his course should finish in August this year however it has been extended because he has not been able to do his last placement. The current CoE concluding in 2021 is just to cover the next placement rather than the whole period. He expects to be able to do his last placement in September or January.

5. With respect to the change in subject, the applicant stated; that he was unable to find a job and so changed career course. Demand for medicine is huge and he will be able to easily transfer. The applicant told the Tribunal that he can get registration in India on return and has researched the requirements When questioned further about this the applicant was able to give clear and specific information as to what that would entail and the work he could consequently do. The Tribunal is satisfied that the applicant genuinely wishes to enter into nursing in India and has done the research to enable him to know how to do that.

Value of the course to the applicant’s future

1. The Tribunal has had regard to the value of the course/s of study to the applicant’s future as follows;

   Is the course consistent with the applicant’s current level of education?

   ·The current course is inconsistent with and at a lower level than the applicant’s previous study history.

   ·The applicant says that he could not obtain employment with his qualifications in technology and was unable to do so. He consequently decided to change his career path to the healthcare sector.

   Will the course assist the applicant to obtain employment or improve employment prospects?

   ·The applicant contends that on completion of his course he will return to India and explore nursing opportunities in various healthcare settings.

   Relevance of course to past study?

   ·The applicant has previously completed higher level studies in significantly different subjects. The applicant’s current study path is of no relevance to his previous study.

2. The Tribunal accepts that individuals from time to time may choose different areas of study because of a change of career course. The Tribunal is satisfied that the current course in which the applicant is enrolled is a genuine career change and will further assist the applicant’s earning potential.

3. The Tribunal accepts that health services are an in-demand service and there is significant employment opportunity in this sector in India r the applicant has provided sufficient information of a career plan in that he will seek registration in India and employment in the health services sector. He has provided enough information to the Tribunal to demonstrate his knowledge in relation to this to enable the Tribunal to conclude that this is a genuine career path.

4. The Tribunal considers, that the applicant is attending the course and is genuinely completing his course and accepts that the additional time it will take to complete is due to circumstances beyond the applicant’s control. He has not extended his studies for the purpose of extending his stay in Australia, but rather to finish the course he is enrolled in.

5. The Tribunal gives this factor significant weight.

Immigration History

1. The Tribunal has had regard to the applicant’s immigration history. There is no evidence of other visa refusals or cancellations.

2. The Tribunal found the applicant’s evidence during the hearing to be genuine and convincing as to the matters above.

Any other relevant matters

1. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

   ·Any other relevant information provided by the applicant that may be either beneficial or unfavourable to the applicant.

2. Considering the above, both individually and collectively the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

3. 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

4. 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.

   Amanda Upton
   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.