Rupinder Kaur (Migration)

[2020] AATA 2077

Rupinder Kaur (Migration) [2020] AATA 2077 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rupinder Kaur

CASE NUMBER:  1835007

HOME AFFAIRS REFERENCE(S):          BCC2018/3387282

MEMBER:D. Shirrefs

DATE:6 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2020 at 11:17am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine temporary entrant as a student – enrolment in a registered course ceased – arrival on visitor visa – plans to establish a childcare business – limited academic progress – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2 cl 500.212; Direction No 69         

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 November 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 6 September 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. On 4 October 2019 the Tribunal wrote to the applicant pursuant to S.359(2) of the Act, inviting the applicant to provide information about her review application in writing.  The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by 18 October 2019 the Tribunal may make a decision on the review, without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. By an email dated 16 October 2019, the applicant’s registered migration agent requested an extension of time “to provide the requested documents for my client”.  On 17 October 2019.  The Tribunal wrote to the applicant’s registered migration agent granting an extension until 1 November 2019 to provide further information about her review application.

6. On 26 October 2019, the applicant provided the further information.  In her response (s.359(2) response) the applicant indicated that she consented to the Tribunal deciding the review without a hearing in the following terms “Yes, I/we consent to the tribunal deciding the review without hearing”.  The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it.  This application has therefore been determined on the evidence available to the Tribunal.

7. In addition to the s.359(2) response, the applicant provided a number of documents, including a temporary entrant statement (GTE statement) and supporting Confirmation of Enrolment certificates.  Further Confirmation of Enrolment certificates were provided by the applicant’s registered migration agent under cover of emails dated 9 November 2019 and 25 February 2020. Each of the documents provided by the applicant has been carefully considered.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 intends genuinely to stay in Australia temporarily.

10. 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?

11. 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.

12. 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.

    Background and applicant’s immigration history

13. The Tribunal has considered clauses 13 and 14 of Direction 69 with respect to the applicants immigration and travel history

14. The applicant declares that they first arrived in Australia on 28 August 2018, having applied initially for a visitor visa in December 2017. They state that their intention was to visit family. They applied for a student (Temporary) (Class TU) Student (subclass 500) visa on 6 September 2018.  The effect of that application would have been to extend their length of stay in Australia by almost a further two years.

15. In her GTE statement, the applicant discusses past visits to Australia to various places in Sydney and Brisbane.  She provides no detail in relation to these visits and the Tribunal makes no finding in relation to this.

16. In her s.359(2) response the applicant declares to have travelled to her home country to visit family for one month in October 2018 and for six months from April 2019, whilst waiting for the grant of the visa. They also declare travelling to New Zealand for 20 days in September 2019 for holidays.  There is no evidence before the Tribunal that the applicant has not complied with the migration laws of the countries she has travelled to other than Australia.

17. In her s.359(2) response the applicant declares holding a visitor visa granted in December 2017 and a bridging Visa A from September 2018.  She does not declare applications for any other Australian visas where a decision on that application has not yet been made.  That evidence is accepted and the Tribunal makes no adverse findings in that regard.

18. In relation to the requirement that an applicant for a student visa is enrolled in a registered course of study, the Tribunal notes the evidence of the applicant that she has not been enrolled in a registered course at all times while in Australia.  She explains this as follows: “I was not in Australia and my enrolment was cancelled by the college because my Visa was refused and I had to travel overseas but I did not wait for my BVB to be approved”. 

19. Notwithstanding that the applicant has provided Confirmation of Enrolment certificates which establish her enrolment in a registered course at the time of this decision, the tribunal is concerned that the applicant has not maintained enrolment in a registered course at all times while in Australia.  Further, the Tribunal is concerned that the applicant has not explained why she did not wait for the approval of her BVB.  This behaviour is not consistent with the behaviour of a student genuinely seeking to secure a visa to successfully continue their studies in Australia temporarily. 

20. Having weighed the applicant’s background and immigration history, the Tribunal is concerned that the Student visa may be being used by the applicant primarily for maintaining ongoing residence.

    The applicant’s circumstances in their home country

21. The Tribunal has had regard to clauses 9 and 10 of Direction 69 with respect to the applicant.

22. The applicant completed a Bachelor of Science in Information Technology in her home country in November 2014.  She has been employed as a programmer from mid 2014 to October 2019 other than for a period of approximately five or six months between March 2018 and September 2018.  In her GTE statement, the applicant states that her current job is very stressful and says, ‘I can see the future of my work, it is not looking good, meaning the demand of my profession is going to decrease in near future”.  She expresses a desire to establish a childcare facility in India with her husband using land in remote areas of Punjab. The Tribunal accepts that it is reasonable for an applicant to consider changing career paths in these circumstances.

23. In her GTE statement the applicant makes general statements in relation to the quality of education in India by comparison with the quality of education in Australia.  That evidence is accepted.  The applicant also provides justification for the distinction between providers offering similar courses in India and Australia.  The Tribunal finds that the applicant has provided reasonable reasons for her decision to not undertake the studies in her home country.

24. The applicant has a spouse, familial, and matrimonial parents in India.  In her GTE statement she says, “my family is very supportive of my decision and is even ready to make the sacrifice of me studying in Australia while they stay back in India.” Although the Tribunal acknowledges that the applicant’s spouse and family living in her home country may act as motivation to return, this, of itself, does not necessarily constitute a strong incentive to return when considered against the fact that employment or economic circumstances do not appear to be favourable.  In her own submission, the applicant expresses a relatively negative view of the current career path.  This weighs against the incentive to return to her home country represented by her spouse and family.  On balance, the tribunal is not satisfied the applicant’s circumstances serve as a significant incentive to return to her home country.

25. In her GTE statement, the applicant describes her income as being in the lower limits of her expectations.  She puts this as one reason to change career direction.  The applicant provides evidence of an ambition to establish a business in childcare, with her husband, which she says is not very common in India.  She says “It would be a perfect opportunity for me and my husband to open a childcare centre after finishing my study”.  However, the applicant provides only the barest of detail in relation to her future economic circumstances in India. While her future aspirations are set out clearly, there is very little substantive evidence to support those aspirations. Elsewhere in her GTE statement, the applicant describes her future plan as being to ‘go back to India and work on our initial plan of opening the business”.  Considering the applicant’s evidence overall, it is not apparent that there has been any substantive planning in relation to her future career at this stage. 

26. Elsewhere in her GTE statement, the applicant described herself as being “fully supported by young family and older parents who want me to gain this qualification to improve my future”.  She also gives evidence of her intention two work in Australia if she gets a student Visa.  The Tribunal, having regard to all of the evidence, and the applicant’s circumstances, is concerned that her circumstances in Australia would present as a significant incentive not to return to her home country.  Accordingly, Tribunal gives this factor relatively little weight in the applicant’s favour.

27. There is no evidence regarding the applicant’s circumstances in India relative to others in that country, and the Tribunal makes no findings concerning the applicant in that respect.

28. The applicant does not express any concerns about military service commitments or political or civil unrest in her home country.

    The applicant’s potential circumstances in Australia

29. The tribunal has had regard to clause 11 of Direction 69 with respect to the applicant.

30. The applicant has a brother and sister-in-law in Australia and she says that “if I need any further financial assistance, then my husband and brother (Australian Citizen) will help me with it.”  She also says “we have enough funds to complete my studies in Australia”.  Notwithstanding the applicants claim to ties to her home country, the Tribunal finds that the presence of family and access to economic support as needed in Australia, acts as an incentive to remain here. 

31. The tribunal is also concerned in relation to the applicants asserted genuine intention to remain in Australia temporarily to undertake the proposed studies. The courses of study the applicant is seeking to undertake would require her to remain on shore until no earlier than July 2020.  At the time of this decision there is no evidence before the Tribunal of the applicant commencing, or progressing in, any course while onshore. Each of the applicant’s courses of study have been deferred, which she attributes to the fact that she is waiting for her review application to be determined.  Her most recent Confirmation of Enrolment certificate (created 19/02/2020 updated 19/02/2020 Document B5625216) relates to enrolment in a relatively cheap, low level, general English course scheduled to take nine weeks to complete.

32. The Tribunal finds it difficult to reconcile the fact that the applicant has gone to the effort, on more than one occasion, to defer Basic English language courses which she has been enrolled in, with a genuine intention to study in Australia temporarily.

33. The Tribunal is also concerned that the generality of the applicant’s evidence in relation to her future plans, and prospects, in her home country is difficult to reconcile with her stated intention to stay temporarily in Australia for the purposes of studying.  Having carefully considered the applicant’s evidence, the Tribunal is concerned that her commitment to studies in Australia is not genuine and that she has enrolled in courses merely to facilitate remaining onshore. 

34. On balance, having carefully weighed all the evidence, the Tribunal is concerned that the student visa program is being used to circumvent the intentions of the migration program.

    Value of the course to the applicant’s future

35. The tribunal has had regard to clause 12 of Direction 69 with respect to the applicant.

36. As noted earlier in this decision, the applicant has achieved Bachelor level qualifications in Information Technology in her home country.  Her current application is based on a Confirmation of Enrolment certificate in a basic English language course, which she says leads to studies in Early Childhood Education and Care.  Even allowing for reasonable changes to careers, the Tribunal is not convinced of any demonstrated connection between the proposed courses of study and her proposed future career.  Any asserted connection between studies in English language and her intention to establish a business in Punjab is completely lacking.  Further, although it is axiomatic that studying early childhood education has a connection with possibly opening a childcare centre in future, the Tribunal finds that it would be reasonable for the applicant to provide some detail in relation to the value of the proposed course to a particular venture.

37. In this regard, the Tribunal notes that although the applicant claims that, after completing her proposed course of studies, she will return to her home country and develop a business with her husband, she has not stated when that would happen or provided any other details beyond that she will work on the initial plan of opening a business. 

38. Having regard to the value of the course to the applicant’s future, I have given some weight in favour of the applicant.  However, I weigh against the applicant the fact that she has provided scant detail regarding what, if any, steps have been taken to initiate the planning for the project, including as to timing.  Considering the extent of the change in career from IT to childcare proposed by the applicant, I do not consider it unreasonable to expect her to have provided more than mere assertions in relation to her future plans.

39. The applicant has not provide any evidence of the remuneration she expects to receive in her home country pursuing her proposed future career plan.  The tribunal finds that this also weighs against there being significant value of the course to the applicant’s future plan.

40. Having considered all the information before it, the Tribunal is concerned that the applicant is using the student visa program to circumvent the intention of the ordinary migration program in order to maintain ongoing residence in Australia.

41. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers material, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

42. 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

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

    D. Shirrefs
    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.