Saini (Migration)

[2023] AATA 3468

Saini (Migration) [2023] AATA 3468 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raman Saini

REPRESENTATIVE:  Mr Ajay Sharma

CASE NUMBER:  2204643

HOME AFFAIRS REFERENCE(S):          BCC2021/705950

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 September 2023 at 11:47 am (NSW time)

DATE OF WRITTEN RECORD:                29 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 29 September 2023 at 10:48am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– strong ties to Australia – not a genuine temporary entrant–applicant failed to complete course – no strong incentive to return to home country –use the student migration program to maintain ongoing residence – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 359

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2022 (Department’s Decision) refusing to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (Act).

2. The applicant applied for the visa on 8 December 2021 for the purpose of studying a diploma of leadership and management course.  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 the 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 clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal by telephone on 7 September 2023 to give evidence and present arguments.  The applicant was assisted in relation to the review by his representative, Mr Sharma.  The applicant was also assisted by an interpreter in the Hindi and English languages. 

5. The hearing was conducted by telephone.  The Tribunal exercised its discretion to hold the hearing by telephone, having regard to the period of time that has elapsed since the applicant applied for and was refused a visa and the applicant is pursuing this application for review to enable him to undertake a diploma of leadership and management course.  In these circumstances, the Tribunal considered that it was in the interests of the applicant to hold the hearing by telephone to ensure the application for review could be heard and determined as quickly as possible in order to give the applicant certainty in relation to his visa status and study rights.

6. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick and the delays to the matter if the hearing was not conducted by telephone.  During the hearing, the Tribunal was satisfied the applicant heard and understood the outline given at the commencement of the hearing as to how the hearing would proceed, and the questions asked during the hearing.  The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant provided to the Tribunal various documents, including a copy of the Department’s Decision, a completed Request for Student Visa Information under section 359(2) of the Act (Request), and an Overseas Student Confirmation Enrolment (COE) for the applicant’s diploma of leadership and management course. 

8. The Tribunal has read all the material provided by the applicant to the Tribunal and considered the applicant’s evidence and submissions. 

   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 clause 500.211 to clause 500.218 must be satisfied by the applicant.

10. Clause 500.212 is set out in the Department’s Decision. This is known as the genuine temporary entrant criterion. In considering whether the applicant satisfies clause 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 section 499 of the Act (Direction).  The Direction is referred to in the Department’s Decision.  The Department’s Decision summarises the factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications.  At the commencement of the hearing, I outlined these factors.

11. The Direction indicates that the factors specified should not be used as a check list 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.

12. The Direction requires the Tribunal or decision-makers to make an evaluative assessment of each factor specified in the Direction having regard to the evidence of the facts, matters and circumstances of the applicant.

13. The Tribunal has considered each of the factors specified in the Direction and makes the following assessments in relation to each factor.

14. In relation to paragraph 9(a) of the Direction, the applicant’s home country is India.  The applicant is pursuing his application for review for the purpose of studying a diploma of leadership and management course.  Initially the applicant said that there were no similar courses to the diploma of leadership and management course in the applicant’s home country.  However, he later indicated that there were courses on a smaller level in his home country.  The applicant said that the scope of education in Australia is greater than it is in India.  He said that he undertook research on Google in order to inform himself of the availability and nature of courses in his home country.  I am satisfied that the applicant has established reasonable reasons for not undertaking the study in his home country or region if a similar course was already available there.  I assess this factor in favour of the applicant.

15. In relation to paragraph 9(b) of the Direction, the applicant completed senior secondary school in his home country in 2017.  He did not work in his home country before first arriving in Australia.  He is an only child.  His parents are alive and continue to live in his home country.  The applicant says that his parents own a house and agricultural land in his home country and as the only child he will one day inherit or acquire that land.  The applicant says that his ties to his home country comprises parents, friends and land.  The evidence establishes that the applicant’s ties to his home country comprise of parents, friendships, and land that he will one day inherit.

16. The applicant first arrived in Australia on 2 October 2018.  He has remained in Australia since arriving.  He has not returned to his home country.  In the Request, the applicant stated that he maintains contact with his family in his home country by, ‘daily via phone and Facebook’.  Accordingly, the applicant maintains his ties or connections with his parents by phone and Facebook.  There is no reason why the applicant cannot maintain contact with his friends in his home country also via phone and Facebook.  Whilst the applicant’s parents own a house and agricultural land, the applicant is not required to maintain this.  He has not yet acquired the house or land.  This property does not provide any need or incentive for the applicant to return to his home country.  Having regard to these factors, I am not satisfied that the applicant’s personal ties to his home country would serve as a significant incentive for the applicant to return to his home country.  I assess this factor against the applicant.

17. In relation to paragraph 9(c) of the Direction, the evidence does not enable me to make an informed assessment of the economic circumstances of the applicant and whether they would present a significant incentive for the applicant not to return to his home country.  Accordingly, I assess this factor as neutral.

18. In relation to paragraphs 9(d) and (e) of the Direction, the applicant says that he has no concerns about military service commitments or political and civil unrest in his home country.  I do not consider the absence of such concerns provides an incentive for the applicant to remain in Australia or a disincentive to return to his home country.  I assess these factors as neutral. 

19. In relation to paragraph 10 of the Direction, the evidence does not enable me to make an informed assessment of the applicant’s circumstance in his home country relative to the circumstances of others.  Accordingly, I assess this factor as neutral.

20. In relation to paragraph 11(a) of the Direction, the applicant has lived continuously in Australia since first arriving on 3 January 2018.  In the Request, the applicant disclosed that since 2021 he has worked in the position of window installer and receives an annual salary of AUD25,000.  The applicant says he has lived in two or three places since first arriving.  He says he lives with friends from India.  The applicant says that since first arriving in Australia he has made a few friends which he studies and works with.  He says that he is not close to those friends. 

21. The evidence establishes the applicant’s ties to Australia comprise work connections and friendships.  The applicant was previously granted a student visa in September 2018 which ceased in December 2021.  This is disclosed by the applicant in the Request.  Since first arriving in Australia, the applicant has been enrolled in five courses of study.  The applicant has not completed any of those courses of study.  The applicant commenced studying his current course of study in July 2023.  The evidence establishes that the applicant is familiar with the Australian living and working environments.  He has now been in Australia for over five years.  I consider this is a sufficient time to establish a strong bond or connection with Australia.  Having regard to these factors and the applicant’s ties to Australia, I find that the applicant’s ties to Australia would present as a strong incentive for the applicant to remain in Australia.  I assess this factor against the applicant.

22. In relations to paragraphs 11(b) and (c) of the Direction, as stated the applicant was granted a student visa in September 2018 which ceased in December 2021.  In the Request, the applicant disclosed that he has been enrolled in the following courses of study for the periods shown: certificate III and certificate IV and diploma of hospitality and management at Skill College from June 2019 to December 2019; bachelor of IT at Southern Cross University from October 2018; advanced diploma of leadership and management at North Melbourne College from December 2022 to December 2023; diploma of leadership and management at North Melbourne College from December 2021.  The applicant is enrolled in the diploma of leadership and management course at Central Australia College.  The COE records that that course has a start date of 17 July 2023 and a course end date of 14 July 2024.  The applicant says that he is currently studying that course of study.

23. During the hearing I confirmed this study history.  I pointed out to the applicant that having regard to the student visa that had previously been granted to the applicant and his study history, I was concerned that the applicant was using the student visa program not for the genuine purpose of study but to maintain ongoing residence.  I invited the applicant to address me on this concern.  Both the applicant and Mr Sharma made submissions in relation to this concern.

24. The applicant said that when he first arrived in Australia he was a child.  He said he did not know what to do.  He said that he is now enrolled in his current course of study and wants to complete that course and return to his home country.  I pointed out that the applicant was 18 when he first arrived in Australia.  I pointed out that the applicant was enrolled in the diploma of leadership and management course at North Melbourne College which commenced in December 2021.  At that time, the applicant was 21 years of age.  I pointed out that by that stage he was not a child.  I asked the applicant why he did not complete the diploma of leadership and management course at the North Melbourne College.  The applicant said that in India a 21-year-old is still a child.  He said that due to COVID-19 the college environment was ‘not the best’.  Mr Sharma made submissions on my concern.  He said in Indian culture the applicant would be regarded as young.  He said that the applicant is an only child.  Prior to first coming to Australia, he lived with his parents. 

25. The fact is the applicant came to Australia for the purpose of studying.  He has now been in Australia for over five years.  He has been enrolled in similar if not identical courses to his current course of study.  He has not completed any course.  When the applicant was enrolled in the diploma of leadership and management course at North Melbourne College he was 21 years of age and had been in Australia for three years.  Whilst the applicant may be considered young or a child in his home country, in my assessment by at least 2021 the applicant had sufficient time in Australia to acclimatise and familiarise himself with the Australian living and working environment.  Having regard to the requirements of student visas, I consider the applicant ought to be sufficiently mature to apply himself to his study.

26. COVID-19 did not prevent the applicant from study.  There is no suggestion that it did.  I have no confidence that the applicant has genuinely applied himself to study.  Having regard to the history I have set out above in relation to these factors, I consider that the student visa program has not been used for the genuine purpose of study but to circumvent the intention of the migration program and the student visa that has been granted has been used to maintain ongoing residence.  I assess these factors against the applicant.

27. In relation to paragraph 11(d) of the Direction, there is no secondary applicant.  Accordingly, this factor is not relevant my assessment.

28. In relation to paragraph 11(e) of the Direction, having regard to the time that the applicant has been in Australia, I am satisfied the applicant has a sound knowledge of living in Australia.  The applicant has established living arrangements.  However, this knowledge and living arrangements has not been acquired or maintained for the purpose of study.  During the hearing the applicant gave evidence in relation to the education provider, the research he conducted in relation to his current course of study.  The applicant was aware that his current course of study comprises 12 units and was able to identify the current units of study he is studying.  The applicant has not completed any units of study.  Overall, I assess the factors specified in paragraph 11(e) of the Direction in favour of the applicant.

29. In relation to paragraph 12(a) of the Direction, the only education the applicant has completed is high school in his home country.  The applicant has not completed any other course of study.  Accordingly, I do not consider the applicant’s current course of study is consistent with his current level of education.  In the Request the applicant disclosed that his future employment plans comprise establishing a small business of windows/glass work.  He states he found this to be his prime interest.  The applicant currently works as a window installer.  The applicant says that his current course will assist him in his proposed future employment because it will provide him with education that will enable him to work and manage people.  I consider that the applicant’s current course of study will assist the applicant to obtain work in his home country or improve his employment prospects.  I assess this factor in favour of the applicant.

30. In relation to paragraph 12(b) of the Direction, having regard to the evidence I have referred to in relation to paragraph 12(a), I am satisfied that the applicant’s current course of study is relevant to his proposed future employment.  I assess this factor in favour of the applicant.

31. In relation to paragraph 12(c) of the Direction, the evidence does not enable me to make an informed assessment of this factor and I assess it as neutral.

32. In relation to paragraph 14(a) of the Direction, in the Request the applicant disclosed that other than the application for the visa that is the subject of this application for review, the applicant has never previously applied for a visa that was refused.  During the hearing the applicant said he has not previously applied for visas to other countries.  I assess these factors as neutral.

33. In relation to paragraph 14(b)(i) of the Direction, there is no evidence before the Tribunal that the applicant has not complied with the conditions of the visas that have been granted to him, which comprises a student visa and a bridging visa.  However, in the Request the applicant disclosed that from 2020 to 2021 he was not enrolled in a registered course due to COVID-19.  I do not consider that COVID-19 prevented the applicant from being enrolled in a registered course.  The failure to be enrolled in a registered course would constitute a breach of the student visa that was granted to the applicant.  However, I did not ask the applicant during the hearing about this.  Accordingly, I assess the factors specified in 14(b)(i) as neutral.

34. In relation to paragraph 14(b)(ii) of the Direction, the applicant said he has not previously held a visa that was cancelled or considered for cancellation.  I assess this factor as neutral.

35. In relation to paragraph 14(b)(iii) of the Direction, having regard to the evidence of the facts, matters and circumstances of the applicant that I considered in relation to paragraphs 11(b) and (c) of the Direction, I am not satisfied that if a further student visa is granted to the applicant it will be used for the purpose of study.  I am not satisfied having regard to the applicant’s poor study history that the applicant will complete his current course of study.  Having regard to the amount of time the applicant has spent in Australia, his study history, that I have outlined above, I find that if a further student visa is granted to the applicant, it may be used primarily to maintain an ongoing residence.  I assess this factor against the applicant. 

36. In relation to paragraph 14(b)(iv) of the Direction, during the hearing the applicant said he has not travelled to countries other than Australia. I assess this factor as neutral.

37. In relation to paragraph 15 of the Direction there is no secondary applicant and accordingly this factor is not relevant to my determination.

38. In relation to paragraph 16 of the Direction, during the hearing Mr Sharma requested further time to provide submissions on the concerns that I have outlined above.  Mr Sharma made submissions in relation to those concerns.  In the circumstances, I did not grant further time for the applicant to provide submissions on the concerns I have outlined above.  The evidence and submissions given and made by the applicant and the submissions made by Mr Sharma have been considered by me.  They do not answer my concerns. 

39. In relation to paragraph 16 of the Direction,  I have taken into consideration the fact that the COE records the applicant as having paid initial pre-paid tuition fee of $750 and other pre-paid non-tuition fee of $250.  I have taken into account that the applicant will now be required to depart Australia without having completed any course of study.  These factors do not change my assessments.

1. Having regard to the evidence and submissions which I have considered against the factors specified in the Direction, on balance the Tribunal is not satisfied the applicant intends genuinely to stay temporarily in Australia.  Accordingly, the decision under review must be affirmed.

   DECISION

2. The Tribunal is not satisfied the applicant satisfies clause 500.212(a) of Schedule 2 of the Regulations. The Tribunal affirms the decision not to grant the applicant a student (Temporary) (Class TU) visa.

   Peter Newton SC
   Member