Sharma (Migration)

[2024] AATA 706

Sharma (Migration) [2024] AATA 706 (21 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Amrit Sharma

REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)

CASE NUMBER:  2209291

HOME AFFAIRS REFERENCE(S):          BCC2022/2219692

MEMBER:Peter Booth

DATE:21 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a 500 (Student) visa: Cl 500.213

Statement made on 21 February 2024 at 1:52pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – applicant is not enrolled in any course of study in Australia – applicant has no study history in Australia – husband is currently enrolled in a graduate diploma –  she and her husband intend to return to India at the completion of his current course of study – factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 500.213,500.312

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 June 2022. The delegate refused to grant the visa on 22 June 2022 on the basis that the applicant did not satisfy the requirements of cl 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 500.312 of Schedule 2 relevantly requires the applicant to be a member of the family and also that the applicant is a genuine temporary entrant at the time of decision.

3. The applicant appeared before the Tribunal on 19 February 2024 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant a genuine temporary entrant and satisfies cl500.312.

7. Clause 500.312 of Schedule 2 to the Act provides as follows:

   The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who:

   holds a student visa, having satisfied the primary criteria for that visa, 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 of any other relevant matter.

8. The delegate concluded that the applicant did not satisfy the genuine temporary entrant requirement.

   Background

9. On 16 June 2022, the applicant applied for a vocational education sector subsequent entrant student visa to join her spouse Yogesh Kumar (Mr Kumar) who holds a subclass TU 500 student visa. At the time of the application Mr Kumar was undertaking a certificate IV in building and construction. He is currently enrolled in a graduate diploma of learning due to be conducted between 11 March 2024 and 7 September 2025.

10. The delegate refused the application on 22 June 2022 on the grounds that the applicant did not satisfy clause 500.312 (a), the genuine temporary entrant requirement.

11. Prior to the hearing the applicant provided a variety of documents to the Tribunal. A marriage certificate confirms that the applicant and Mr Kumar were married in India on 20 June 2021. A letter from the Department of home affairs confirms that the applicant was granted a tourist visa valid between 20 April 2022 and 20 April 2025. A handwritten document lists names and dates of birth. The file is headed as being details of family members however the relationship to whom is not stated, presumably these are the relatives of the applicant. The letter from the Department of home affairs confirms that Mr Kumar was granted a subclass TU 500 student visa valid from 24 January 2022 until 26 February 2025. A letter dated 1 May 2021 signed by the applicant pursuant to which she resigned her employment in India as a psychologist effective from 31 May 2021. Confirmation of enrolments in respect of Mr Kumar are as follows: a certificate IV building and construction conducted between 12 July 2021 and 11 July 2022 and a diploma of leadership and management due to be conducted between 15 January 2024 and 12 January 2025.

12. The applicant also provided a letter to the Tribunal headed “statement of genuine temporary entrant.” The letter is unsigned, undated and without page or paragraph numbers. The conclusion of the document makes provision for signatures of both the applicant and Mr Kumar although neither have signed the document. The language of the document is in the first person and by Mr Kumar, it mostly relates to his intentions and circumstances not those of the applicant. It relevantly states as follows: he and the applicant “wish to apply for subsequent entrant visa” for the applicant to “stay with me temporarily during my studies.” It refers to his intention to study a diploma of leadership and management, extols the virtues of such a course and concludes by stating “having my wife with me will make my temporary stay and experience in Australia more delightful and fulfilling.”

13. The Tribunal conducted study searches in respect of the applicant and Mr Kumar and movement searches in respect of the applicant. The study history search discloses that the applicant is not enrolled in any course of study and has never been in enrolled in a course of study in Australia. The study history search in respect of Mr Kumar shows his most recent enrolment in the diploma of leadership and management course was cancelled on 30 March 2023 and he appears to be currently enrolled in a graduate diploma of learning due to be conducted between 11 March 2024 and 7 September 2025.

14. The movement search of the applicant discloses that she arrived in Australia on 23 May 2022 and has not departed. The Tribunal notes that the application for the student visa in question was made on 16 June 2022, approximately three weeks after she arrived in Australia as the holder of a tourist visa.

15. By letter dated 19 October 2023 the Tribunal wrote to the applicant disclosing certain adverse information which was available pursuant to the searches. The applicant was invited to respond on a before 2 November 2023. The letter was in the following terms:

    The particulars of the information are:

    ·The primary person associated with your visa application, Mr Yogesh Kumar applied for his student visa on 20 December 2021. The visa was granted to Mr Yogesh Kumar on 24 January 2022. You were not included in this application.

    ·On 16 June 2022, you applied for a Student (Temporary)(Class TU) Subsequent Entrant Visa (Subclass 500) on the basis that you were a member of the family unit to remain with your spouse in Australia. This application was refused on 22 June 2022.

    The delegate noted the following in their decision record for the refusal of the Student (Temporary)(Class TU) Subsequent Entrant Visa:

    ·He was not satisfied that your economic circumstances in your home country would constitute a strong incentive for you to return home based on no verifiable employment history since 31 May 2021 as well as the limited information provided as part of the application, including a lack of information regarding any employment opportunities, ownerships of assets

    ·or business ties;

    ·He considered your circumstances in Australia and referenced screenshots of WhatsApp messages with your spouse which included discussions of permanent residency options in Australia, as well noting that you did not clearly explain how you will be supporting your spouse while in Australia. These factors led to the delegate not being satisfied that you will return home at the end of your proposed stay in Australia and that you may be using the student program as a means for maintaining ongoing residence in Australia.

    The particulars of the information from the Department of Education’s records are that:

    ·You are not currently enrolled in any registered course of study in Australia; and

    ·Yogesh Kumar is currently enrolled in a Diploma of Building and Construction

    ·(Building) to be completed between 13 February 2023 to 11 February 2024.

    Your movement records indicate that:

    ·You have not left Australia since your arrival on 23 May 2022.

    A copy of your movement records and a document with screenshots of the results of
    this PRISMS search accompany this letter.

    This information is relevant to the review because it indicates that you may not intend
    to genuinely stay temporarily in Australia and may be using the student visa program
    to prolong your stay in Australia and to circumvent the intention of the migration
    program.

    If we rely on this information in making our decision, we may find that you are not a
    genuine applicant for entry and stay as a student. We may therefore find that you do
    not meet cl. 500.312 of Schedule 2 to the Migration Regulations 1994 (Cth) for the
    grant of a Student (Subsequent Entrant) visa.

    These may be the reasons, or part of the reasons, for the Tribunal affirming the
    decision not to grant you a student visa.

    You are invited to give comments on or respond to the above information in writing.

    Invitation to provide information
    You are also invited to provide the following information in writing:

    ·Information about your relationship with Mr Yogesh Kumar and whether he still holds a Student Visa;

    ·Information about whether you are enrolled in and attending a registered course of study; and

    ·Information about whether you are a genuine applicant for entry and stay as a

    ·student.

    Specific details of the information requested about your enrolment and status as a
    genuine applicant for entry and stay as a student are set out in the Request for
    Student Visa Information form.

16. By letter dated 20 October 2023 Tribunal wrote to the applicant and provided her with screenshots or images of the various “Whatsapp” messages between, apparently, she and Mr Kumar and others.

17. On 1 November 2023, presumably in response to the Tribunal’s letter dated 19 October 2023 the applicant provided a single document, a completed request to provide information document which had been referred to in the letter dated 19 October 2023. In that document the applicant provided some relevant information as to her circumstances. The information provided by the applicant was as follows. Prior to arriving in Australia she completed a bachelor of arts in 2011, a master in psychology in 2015 and a postgraduate diploma in guidance and counselling in 2020. She was employed in India as a family counsellor between 2016 and 2018 and as a psychologist between 2018 and 2021. She stated that she demanded an annual salary from the latter position of AU$5500.

18. The applicant arrived in Australia on 22 May 2022 and has not returned to India. The application for the student visa in question was made on 16 June 2022. As to her visa history the applicant stated that she was granted a “tourist visa” on 20 April 2022. No further information was provided.

19. In response to the question as to whether she had previously had a visa application refused, other than the current visa application she stated “Australia visa (student subsequent entrant) was refused.”

20. The applicant confirms that she is not enrolled in any course of study in Australia and has no study history in Australia. The applicant did not disclose any employment history in Australia. The applicant stated that her husband and child reside in Australia and her father and mother reside in India.

21. As to her ownership of assets in India she stated “husband have property.”

22. As to her future career intentions she stated “I will return to India with my husband and we have plan to run a business.”

23. As to her future remuneration expectations she stated “we aiming to earn 80k+ INR.”

24. On or about 12 February 2024 the applicant provided further documents. Several have been previously provided. The new documents were as follows. A document headed “experience certificate” dated 28 February 2022 confirms that the applicant had worked as a psychologist at a school from 10 July 2018 until 31 May 2021. It contains a positive employment reference. A certificate contains examination results in respect of the first year of a bachelor of arts degree undertaken by the applicant. A document headed “discharge summary” contains details of the discharge of a patient from a medical facility. The name of the patient is neither that of the applicant or Mr Kumar. Various documents regarding the financial capacity of Mr Kumar’s parents. A confirmation of enrolment in respect of Mr Kumara in a graduate diploma of management due to be conducted between 11 March 2024 and 7 September 2025. Finally, a letter addressed to the Tribunal dated 12 February 2024 and signed by the applicant. It has no page or paragraph numbers.

25. The applicant makes several points in this document. She confirmed that she has completed a degree in arts, a Master of arts in psychology and a postgraduate diploma in guidance and counselling, her brother-in-law resides in Canada, her father-in-law “has been a heart patient now four years” and that she and Mr Kumar “have to return back to her family to support them.” She has close family ties in India, “including elderly parents  and dependants”, and that “returning to India is imperative to fulfil our familial responsibilities” and that “we have ongoing financial interests, including property ownership, investments and banking relationships that necessitate a return” and finally “I appreciate the opportunity to study in Australia and am committed to returning to India upon the completion of my husband’s academic pursuits.”

    The hearing

26. The applicant confirmed that she had read the delegate’s decision dated 22 June 2022. Further that she understood the issue for determination is whether she satisfied clause 500.312 (a), namely that she was a genuine temporary entrant.

27. The Tribunal proceeded to ask the applicant questions, the substance of which and her responses were as follows.

28. The applicant confirmed that she and Mr Kumar are still married and that he is enrolled in a graduate diploma of management.

29. The Tribunal observed that the applicant resigned her employment effective from 31 May 2021. She agreed. When asked why she resigned her employment she said “I was coming to see my husband for three months, they were not giving me that long holiday.”

30. The applicant confirmed that she was married in India on 20 June 2021. She also confirmed that she arrived in Australia on 23 May 2022. The Tribunal observed that she resigned her employment in May 2021 because she could not get three months leave of absence but did not leave to travel to Australia for approximately one year. She was invited to explain. She said “we got married in June 2021, he came back in December 2021, they did not give me holiday for marriage, I was working online.” The Tribunal informed the applicant that the dates did not make any sense and asked that if she resigned in May 2021 to explain why she was working in June 2021. She said “the children sessions was completed, then Covid 19 came, to complete the sessions I had to work online, they said cannot go without completing.”

31. The applicant was asked again why,  having resigned in May 2021 because she was not granted three months leave of absence, she waited for approximately one year to travel to Australia. She said “despite me having resigned they said children going for exam you need to complete education with them even after resigning, I worked until September.” When asked whether she was paid until September she said “yes.”

32. She was again asked why it took approximately a year after resigning to travel to Australia. She said “at first I was not interested in Australia, then the mood changed and I said let’s go and see.” The Tribunal observed that she had resigned her employment because she didn’t get the leave of absence she wanted in order to travel to Australia and asked why she said she was not interested in travelling to Australia. She said “I did not resigned to come to Australia, resigned to get married”. The Tribunal observed that she had previously stated that she resigned because she could not get a three month leave of absence in order to travel to Australia. She said “it was a mistake, I was confused.”

33. She was asked how long she intended to stay in Australia when she first arrived. She said “three months, but when I came to Australia I conceived a baby and I had to stay here.” She was asked when she became aware that she was pregnant. She said “in July.” The Tribunal asked whether she was referring to July 2022. The applicant said “yes.” She was asked whether she was sure of the date. She said “yes when I conceived I have medical complications and they told me that you are one month pregnant, I wanted to do abortion, I discuss with my husband and family, they said don’t do it.”

34. The Tribunal observed that she made the student visa application in question on 16 June 2022, before she knew that she was pregnant. The applicant agreed. The Tribunal reminded the applicant that she had given evidence that she became pregnant and this changed her intentions and that is why she had applied for a student visa. She said “even though I had applied I was not keen to stay, because of medical condition.” When the question was repeated she said “my intention was only to get visa, not to stay here.” The Tribunal informed the applicant that her responses were most unconvincing. The applicant did not reply.

35. The Tribunal observed that she arrived in this country intending to stay for three months but within a few weeks she had made a student visa application which would enable her to stay whilst her husband was studying. She said “I came here for three months, student visa application in June, in July I can see baby.” She was invited to answer the question directly. She said “I have no motivation to stay, my family is in India.” The Tribunal to observed that the her husband and child reside in Australia and that it was incorrect to say that her family resided in India. She said “even though he is here, father in law is in India, it is important for me to look after his father, my brother is in Canada, he is alone, I have wanted to go and look after him.”

36. The Tribunal observed that whilst the applicant was saying that she did not want to stay in Australia and that she wanted to look after her father-in-law in India, she was still in Australia and invited her to comment. She said “I conceived a baby here, that is the reason I stay here, I have no intention to stay here, I wanted to go back, I was not able to travel, I have such bad nausea, my doctor advised me to stay here, my cousin could have put in temporary residence application but he is not doing it, we’re going back.”

37. The applicant was asked whether she had any medical opinion evidence to support her assertion that she could not travel. She replied “talk with doctor, he says not for travel”.

38. The Tribunal observed that the applicant had not returned to India since arriving and invited her to comment. She said “with pregnancy complication and after baby born we had to stay here for vaccinations: one needed six months late.” When asked when her child was born she said “22 February 2023.”

1. The Tribunal observed that in the information she had provided she stated that she had previously been refused a student visa. She was invited to explain. She said “it was refused because I did not come here to study, came here to join husband.” She was asked whether this was a different visa application which had been refused and not the one that was subject of this proceeding. She said “I put a file in.” She was asked to explain any previous visa applications and give refusal details. She said “one skill visa and there was a 500 visa before that.” She was asked when these applications were refused. She said “skill visa refused in November 2022.” She was asked whether the visa application was in her name and she said “that was just a trial because my brother-in-law was in Canada he said kitchen skills assessed.” When the question was repeated she said “I got student visa from India, that was refused, student dependent visa.” The applicant was invited to respond directly to the question. She said “I had no motive to stay here, it was just a trial to see my brother-in-law was in Canada.”

2. The Tribunal observed on her evidence this was the third visa application which had been refused. She said “no.” She was invited to explain. She said “only two visa, student for India, and one refusal here.” The Tribunal asked why she had been discussing a skilled student visa application which had been refused and she said “by mistake.” The Tribunal observed that her explanation was difficult to accept because she had used the term “skilled visa application” on numerous occasions. She said “a mistake of confused.”

3. When asked whether she was employed in Australia she said “no.” When asked whether she had assets in India in her own name she said “yes, cash and fixed deposit.”

4. She was asked to state her intention when her husband completes his current course of study. She said “our intention is to go back, my father-in-law is ill, I need to look after him, we have a property there, it is expensive here, we can live comfortably there with what we have.”

5. The applicant was asked whether she intended to apply for permanent residence in Australia. She said “no.” When asked whether she was aware of certain “Whatsapp”  discussions with her husband about obtaining permanent residence she said “yes.” She was invited to comment. She said “I was thinking differently, when I have the discussion, when I came here I saw it was so expensive here, but in India I can easily get a job with my qualifications, that that was just a trial where my brother-in-law said in Canada, we have no intention of living here, we will go back to India, my age is not for study, I will have to look after children.”

6. The applicant was invited to add anything further to her application for review. She said “we want to go back to India, my husband went back, he came back to do higher education, once completed again back to India, it is very difficult to stay here, we have our own home in India, and zero expense, my mum can look after the child, I can get a job, if I stay here I have to study again, that is too hard for me, with my husband completing higher education will go back and live in India.”

7. The applicant’s representative was invited to make any submissions. He made two points. First that the applicant’s husband is not eligible for a 485 visa and cannot apply for permanent residence. Secondly it is too expensive for the applicant to remain in Australia and that they intend to return to their home country.

   Conclusion

8. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence.

9. Without diminishing the applicant’s evidence, it can be summarised as follows.

10. The applicant completed a bachelor of arts, Master of arts in psychology and a postgraduate diploma in guidance and counselling in India. She has been employed apparently as a psychologist in India for some time. She resigned her employment as a psychologist effective from 31 May 2022 she has not been employed since that time.

11. The applicant and Mr Kumar were married in India on 20 June 2021

12. The applicant arrived in Australia on 22 May 2022 as the holder of a tourist visa. She has not returned to India. Their child was born in Australia and remains in Australia.

13. The application for the student visa in question was made on 16 June 2022, a few weeks after the applicant arrived in Australia.

14. The applicant is not enrolled in any course of study in Australia and has no study history in Australia.

15. The applicant owns no real property in India. Her mother and father reside in India. Her spouse and their child both reside in Australia. She has no employment history in Australia and is currently unemployed. The applicant has stated a vague desire to return to India and “run a business” with her husband. No details have been provided.

16. The applicant’s spouse, Mr Kumar is currently enrolled in a graduate diploma of learning due to be conducted between 11 March 2024 and 7 September 2025. His study history discloses that he has been enrolled in various courses since February 2019 and he has had multiple enrolments cancelled. He appears to have completed an English course and a certificate IV in building and construction. His enrolment in a diploma of leadership and management was due to start on 17 June 2024 what was cancelled due to “non-commencement of studies.”

17. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant arrived in Australia intending to stay for three months but quickly changed her intention and applied for a dependent student visa, the explanation was that she became pregnant and then decided to stay because of alleged complications in the pregnancy. The Tribunal does not accept the explanation because the student visa application was made in June and she only became aware of the pregnancy in July 2022. However, the applicant is entitled to apply for such a student visa onshore and while holding a tourist visa.

18. Next, the applicant has been in Australia since May 2022 and has not returned to India. She said this was because her child was too young to travel without vaccinations. Whilst there is no medical evidence to support this assertion, it is given some weight by the Tribunal as probably being correct. She owns no real property in India, her assets are cash at a bank and no corroborating documents have been produced.

19. The applicant has had at least one other visa application refused, and she appeared reluctant to give details about it. The previous refusal taken together with her conduct in arriving in Australia and then quickly applying for a visa which would enable her to stay for much longer speaks only to the desire or motivation of the applicant to travel to Australia. Similarly, the discussions on social media between she and her husband regarding the option of applying for permanent residence reflect on her possible intentions at that time but she has given evidence that she has not applied for permanent residency and does not intend to do so. The conversation in which the option is discussed in the Tribunal’s view does not reflect adversely on whether the applicant is a genuine temporary entrant.

20. The applicant has stated that she and her husband intend to return to India at the completion of his current course of study. This is given some weight. Whilst the applicant’s representative stated that the current course of study does not provide a pathway for either a temporary graduate visa or permanent residence, it would not preclude the applicant’s husband from applying to study different courses. The Tribunal notes that the applicant’s husband’s course is due to finish in early 2025 and that the applicant is currently studying.

21. However, on balance, and not without significant misgivings, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant. Should the applicant make a further student visa application on the basis of her husband’s intention to undertake further study after this, the evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment her intention to stay in Australia temporarily only to study.

    DECISION

22. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a 500 (Student) visa:

    ·cl 500.312.

    Peter Booth
    Member

    1.12     Member of the family unit

    (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

    General rule

    (2)A person is a member of the family unit of another person (the family head) if the person is:

    (a)     a spouse or de facto partner of the family head; or

    (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

    (i)has not turned 18; or

    (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

    (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

    (c)      is a dependent child of a person who meets the conditions in (b).

    This subregulation has effect subject to the later subregulations of this regulation.

    …

    1.05A  Dependent

    (1)  Subject to subregulation (2), a person (the first person) is dependent on another person if: 

    (a)  at the time when it is necessary to establish whether the first person is dependent on the other person: 

    (i)  the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person  for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)  the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)  the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    (2) …