Sharma (Migration)

[2021] AATA 2536

Sharma (Migration) [2021] AATA 2536 (15 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prateek Sharma

CASE NUMBER:  1933886

HOME AFFAIRS REFERENCE(S):          BCC2019/4711492

MEMBER:Gabrielle Cullen

DATE:15 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 July 2021 at 11:51am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – consent to decision without hearing – continuous enrolment and successful completion of courses so far – limited ties to home country and undetailed reasons for studying courses and value to future – no weight given to adverse information of work while on previous tourist visa and bridging visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359A, 360(3), 363A

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

CASE

Hasran v MIAC [2010] FCAFC 40

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 7 November 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 19 September 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. With his application he provided evidence of enrolment in a Certificate IV in Business, Diploma of Business and Advanced Diploma of Leadership and Management from 14 October 2019 to 15 October 2021. The evidence at the time of this decision indicates he has successfully completed the Certificate IV and Diploma of Business and is currently enrolled in the Advanced Diploma of Leadership and Management.[1]

   [1] While the PRISMS record indicates his enrolment in the Certificate IV in Business was cancelled the applicant has since provide a Certificate of Completion for this course.

4. The applicant arrived in Australia on 20 June 2019 on a subclass 600 tourist visa valid to 20 September 2019 and applied for the visa to which this decision relates on 19 September 2019. He had previously visited Australia on tourist visas from12 May 2018 to 8 August 2018 and 19 January 2019 to 9 April 2019.

5. With his application he indicated he had never married,  had successfully completed secondary school in India and provided evidence of health insurance to 15 December 2021. He indicated he will return to India to set up his own business so he decided to learn some business skills. While referring to a “sop” being provided, none was attached to the application.

6. He also provided the following documents:

   ·Letter from ANZ confirming his account balance as $17,023.21 dated 4 October 2019.

   ·Certificate of Overseas Student Health Cover starting on 7 October 2019 and ending on 7 August 2021.

7. The delegate decided to refuse to grant the visa on 7 November 2019. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned as to the applicant’s limited ties to his home country, including that he is unmarried, his lack of evidence as to his past employment in India where he claimed he was helping his parents from September 2013 to September 2016, and that there is no evidence of assets in his home country. The delegate was concerned as to the limited knowledge he had provided as to why he chose the education provider, the limited evidence as to the course subjects he was studying and why he wishes to study in Australia including independent research of other study destinations or education providers outside Australia. The delegate was concerned that the applicant had not provided supporting documentation or any substantial reasons as to why he has chosen to study the business courses which he found is not consistent with a genuine student. The delegate placed weight on the lack of apparent value of the courses to his future and was of the view he is using the student visa program as a means of maintaining residence  not as a genuine student.

8. On 28 November 2019 the applicant lodged an appeal to the Tribunal. On 6 December 2019 he forwarded to the Tribunal the decision of the Department.

9. On 21 January 2021 the Tribunal wrote to the applicant a s.359(2) letter as follows.

   As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

   ·enrolled in a registered course of study; and

   ·a genuine applicant for entry and stay as a student.

   Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information from which you can access by clicking on the link below.

10. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

11. On 4 March 2021, after the Tribunal granted an extension of time to respond,  the applicant provided a completed ‘Request for Student Visa Information’ form in which he indicated he consented to the Tribunal deciding the review without a hearing.  He provided additional information addressing the genuine temporary entrant criteria as follows:

    ·He provided no information as to his employment prior to coming to Australia and in Australia.

    ·His parents live in India and his sister in Australia.

    ·As to why he chose the education provider for his Australian course; he responded because it is near his house and his friends recommended it as they are studying there.

    ·As to why he is studying in Australia and not his home country; he responded that as Australia has a better education system rather than India and there is more theory work and better teachers for a brighter future.

    ·As to his employment plans, he said he will return to his home country to start a business. He indicated his father will support him in his new business.

12. He also provided a Certificate of Completion for the Certificate IV in Business

13. On 18 June 2021 the Tribunal wrote the applicant the following s.359A letter based on information contained in the Department file.

    Information from the Department file indicates there was a report made by a member of the community on 21 October 2019 that you were employed, working as a driver. At that time, you held a bridging visa which had a No work condition on it and prior to this you held a subclass 600 tourist visa and a condition of that visa is that you are not allowed to work. The information indicates you have held a bridging visa with a No work condition 8101 from 19 September 2019 and previously held a subclass 600 visa from 13 April 2018 to 29 September 2019.

    This information is relevant to the review because you have applied for a Student visa and it is a requirement for the grant of a Student visa that you are a genuine temporary entrant at the time of decision (clause 500.212). 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’, which refers to considering a person’s immigration history and any relevant matter. The Tribunal considers that working in contravention of a condition of the visa is a relevant matter and it may find you are not a genuine temporary entrant.

    If we rely on this information in making our decision, we may find that you are not a genuine student and therefore not a genuine temporary entrant. This would mean that you do not meet clause 500.212. The consequence of the Tribunal relying on this information is that it would be the reason or part of the reason for the Tribunal to affirm the decision of the delegate to refuse to grant you a Student visa.

14. In the letter he was also informed of the following:

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

15. The applicant was given to 2 July 2021 to comment or respond to the letter.

16. At the time of this decision no response has been received by the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. In his reply to the s.359(2) the applicant consented to a decision being made without a Tribunal hearing.

18. In addition, the Tribunal is of the view the applicant did not provide the information requested in the s.359A letter within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

19. 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 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 meets cl.500.212.

20. 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.

21. 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.

22. 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.

23. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that study in Australia is highly regarded and it accepts his reasons for not studying in his home country. The Tribunal accepts his parents, live in India, although his sister lives in Australia. The Tribunal is of the view that these circumstances are indicative of a person who is only a temporary entrant and present as an incentive for the applicant to return to his country.

24. The Tribunal accepts that since his application for the student visa on 18 September 2019 the applicant has been continuously enrolled  and successfully completed the Certificate IV and Diploma of Business. It accepts he is currently enrolled in the Advanced Diploma of Leadership and Management to 15 October 2021. The Tribunal accepts that continuous enrolment and the successful completion of registered courses are indicative that the applicant is a genuine student. However, they are but two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

25. Of significant concern that the applicant is a genuine temporary entrant and genuine student studying in Australia for the reasons he claims is his evidence lacking in detail as to why he is studying these courses and the value of them to his future. Despite being asked both in his application form and the s.359(2) request for information as to this his evidence has been very limited. He has indicated that he will return to start a business and that his father will support him in his new business. Considering the time that he has and will spend studying in Australia of 2 years and the expense of living and studying in Australia the Tribunal is of the view that if the applicant was and is studying for the reasons he claims and for any value to his future, he would be able to provide far more detailed evidence as to his future business, including the type of business and plans for the business as well as how the courses he is enrolled in will assist in the development and running of his business on return to India. Based on the applicant’s evidence lacking in detail the Tribunal therefore does not accept that he is studying these courses for the reasons he claims including for any value to his future. It follows that the Tribunal is of the view that he is using the student visa to maintain ongoing residence not for any value to his future or for any of the reasons he claims.

26. As outlined above, in the Tribunal’s s.359A letter to the applicant, there is evidence on the Department file that indicates there was a report made by a member of the community on 21 October 2019 that the applicant was employed and working as a driver in contravention of his subclass 600 and bridging visa conditions. On the basis of the limited evidence before it, including the motivation of the person making the complaint, the Tribunal places no weight on this evidence as to determining whether the applicant meets the genuine temporary entrant criteria.

27. As to the applicant’s immigration history, the Tribunal is of the view that there is nothing in his immigration record, other than the above report which it has placed no weight on, which indicates that he does not genuinely intend to stay in Australia temporarily. In making this finding it has considered that he has arrived in Australia on a tourist visa and applied onshore for a student visa.

28. In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled in the Advanced Diploma of Leadership and Management, he has successfully completed a Certificate IV and  Diploma of Business since his application for the student visa, his family ties in India, his reasons for studying these courses and all the evidence he has submitted to support his claim that he is a genuine student and genuine temporary entrant; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

29. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

30. On the basis of the above, 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).

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.

    Gabrielle Cullen
    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.