Samra (Migration)

[2018] AATA 5519

Samra (Migration) [2018] AATA 5519 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gagandeep Kour Samra

CASE NUMBER:  1705298

HOME AFFAIRS REFERENCE(S):          Bcc2016/3207082

MEMBER:P. Wood

DATE:18 December 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 18 December 2018 at 5:44pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – poor level of academic progress– maintain ongoing residence in Australia– decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 March 2017 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 27 September 2016. 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).

4. The applicant appeared in person before the Tribunal on two occasions to give evidence and present arguments.

5. The applicant was assisted in relation to the review by her registered migration agent. The registered migration agent did not attend either hearing.

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.

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. Direction No.69 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 background to this application is that the applicant arrived in Australia on 19 June 2013. On 11 June 2013 the applicant was granted a subclass 573 visa in order to undertake tertiary study in Australia. That visa was valid until 30 September 2016. On 27 September 2016, three days before her visa was due to expire, the applicant made the student visa application which is now before the Tribunal.

12. As at the date of the delegate’s decision, 8 March 2017, the applicant had not completed any study in Australia.

13. The Tribunal has read and had regard to documentation provided by the applicant to the Department. This includes her original completed application relevant to the visa which is the subject of this review, a completed migration agent nomination form, a copy of a delegate’s refusal of an application made by the applicant’s husband for a subclass 573 visa, an undated genuine temporary entrant statement addressed to “Dear Officer”, enrolment documentation from the Australian Catholic University in relation to a Bachelor of Business Administration degree at the North Sydney campus, a letter of release dated 6 November 2015 from the University of South Australia, a letter of release dated 23 October 2015 from the Eynesbury College, a statement of attainment of results from the Durban International College, email correspondence with the Eynesbury College, a confirmation of enrolment certificate for the Bachelor of Business Administration degree the Australian Catholic University (with enrolment from 5 February 2018 to 31 December 2020), an academic transcript from the Eynesbury College, a confirmation of enrolment certificate for the Advanced Diploma of Business from the Durban International College (with enrolment from 12 February 2018 - 10 February 2019), passport extracts, confirmation of enrolment in the Diploma of Business from the Durban International College, a letter from the Commonwealth Bank of Australia dated 26 September 2016, a statutory declaration dated 27 September 2016, fee receipts from the Eynesbury College dated 26 September 2016, payslips dated 17 July 2016 and 31 July 2016 evidencing casual work in Australia at $27.70 and $28.36 AUD per hour, an undated statement of purpose, letters from doctors dated 9 July 2013, 31 July 2013, 10 September 2013, 18 November 2013, 12 December 2013, 27 May 2014, 26 June 2014, 15 October 2015,  16 October 2015, 26 September 2016, an IELTS test report dated 20 August 2016 and marriage registration documentation.

14. The Tribunal has read and had regard to the documentation provided by the applicant to the Tribunal. This includes a copy of the delegate’s decision record dated 8 March 2017, the written submissions of the applicant’s representative, copies of enrolment documentation previously provided to the Department, a record of results and certificate from the Durban International College evidencing completion of the vocational level Diploma of Business on 18 December 2017, an academic transcript dated 9 November 2015 from the Eynesbury College, family photographs depicting the applicant in the presence of her husband and others, further marriage documentation and copies of other documentation already provided to the Department and referred to above.

15. On the day of the first hearing, 8 August 2018, the applicant completed a questionnaire prior to the hearing commencing and the Tribunal has read and had regard to her answers.

16. The Tribunal accepts that the applicant has completed a Diploma of Business and is presently enrolled in an Advanced Diploma of Business. The applicant told the Tribunal that she wishes to pursue bachelor level study future.[1] She told the Tribunal that she does not want to return to India without a bachelor level degree. Given the applicant’s poor study history in Australia, the Tribunal does not simply accept her bare assertions in relation to this.

    [1] The applicant’s representative also provided an offer of enrolment from TAFE South Australia for Bachelor of Hospitality Management degree.

17. At the first hearing, the applicant told the Tribunal that her future plan is to return to India in order to assist her husband on his family’s 60+ acres of agricultural land. She told the Tribunal that she considered than an Advanced Diploma of Business would assist her and her husband to pursue an agri-based business using the land.

18. The Tribunal was puzzled to learn during the course of the second hearing that in between the two hearings the applicant decided to apply for a Bachelor of Hospitality Management degree. At the second hearing, the applicant restated her future plan is still to pursue an agri-based business. It is unclear to the Tribunal how the Bachelor of Hospitality Management degree program is relevant to the applicant’s stated plan. The Tribunal considers that the applicant may have enrolled in the Bachelor of Hospitality Management to assuage any concerns that the Tribunal may have in relation to her limited academic progress only being in the vocational sector in circumstances where she arrived in Australia on a tertiary level (573) visa.. The Tribunal does have such concerns and they are not assuaged by her recent enrolment in the Bachelor of Hospitality Management degree.

19. The Tribunal has had regard to whether the applicant has sound reasons for not undertaking her proposed study in India or that region. The representative’s written submission states that “a diploma holder of business from Australia is much better than Master of Business Administration in India”. In the absence of supporting evidence, the Tribunal does not accept this.

20. The applicant claims that her initial studies in Australia at Eynesbury College were affected by stress and medical problems. The applicant claims that whilst she experienced some improvement in her original medical condition after May 2014, she continued to suffer depression. During this period the applicant returned briefly to India where she was married on 8 February 2015. Whilst the Tribunal acknowledges that the applicant has provided medical evidence relating to portions of her time as a student in Australia, the Tribunal considers this only a partial explanation for her limited academic progress.

21. The applicant told the Tribunal that her family, including her husband (and his family), continue to reside in India. The applicant’s husband’s application to join her in Australia was refused in 2016. In an earlier statement provided to the Department the applicant advised that her husband is the only son of his parents and that he has a responsibility to support her and his parents. The Tribunal considers that over more than 5 years the applicant has been able to manage family relations overseas by keeping in touch from Australia and by visiting. In all the circumstances the Tribunal does not consider the applicant’s personal connections overseas, including her husband, to be a significant incentive for the applicant to cease residence in Australia.

22. The applicant is provided residential accommodation in Adelaide by her sister. In an earlier statement provided to the Department the applicant wrote “I never pay for residence, food, entertainment, internet or anything”. The Tribunal considers the presence of the applicant’s sister in Australia, who provides maintenance for the applicant including subsidised accommodation, food, and daily support, a strong incentive for her to remain in Australia.

23. It is common knowledge that there is an economic disparity between Australia and India.[2] In these circumstances, the Tribunal questioned the applicant about her economic circumstances in Australia and India. The applicant told the Tribunal that she works in a hotel/motel and that the “pay rate is very good”. She has also previously worked as a housekeeper. On the applicant’s evidence, she can earn a lot more in Australia compared to India. The Tribunal considers the applicant’s economic circumstances in Australia, specifically the capacity to earn Australian dollars in any ordinary employment, presents a significant incentive for the applicant not to return to India.

    [2] See also “World Development Indicators”, data.worldbank.org/products/wdi, December 2018

24. The applicant has completed a nationally accredited vocational qualification in business. The Tribunal considers that the applicant’s present studies in the VET sector will only marginally improve her employment and remuneration prospects outside Australia. The Tribunal considers that the applicant’s present studies in the VET sector, and proposed further studies, offer limited incremental value to the applicant’s stated plan (see para 17 above) when considered alongside the qualification and practical work experience that the applicant has already gained in Australia.

25. The delegate found that the applicant received release letters from the Eynesbury College on 23 October 2015 and from the University of South Australia on 6 November 2015. The delegate was concerned, as is the Tribunal, that the applicant remained onshore in breach of her visa conditions until the time that she lodged the application which is now before the Tribunal (on 27 September 2016). The applicant sought to explain these circumstances referring to her medical circumstances and difficulty obtaining enrolment. Whilst the Tribunal accepts the applicant’s explanations in part, the Tribunal finds that these circumstances were not entirely beyond her control.

26. In accordance with the ministerial direction, the Tribunal questioned the applicant concerning any circumstances in her home country that may induce her to apply for a student visa as a means of remaining in Australia indefinitely. The applicant did not declare any reasons why she cannot return to India, including political or civil unrest.

27. There is no evidence regarding the applicant’s circumstances in her home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

28. The applicant did not declare a visa history outside of Australia-India. The Tribunal makes no findings concerning the applicant’s immigration history outside of Australia.

29. 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, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In this case the Tribunal is concerned that the applicant is using the student visa program primarily in order to maintain ongoing residence in Australia.

30. 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.

31. 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

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

    P. Wood
    Senior Member