Sidhu (Migration)

[2024] AATA 1446

Sidhu (Migration) [2024] AATA 1446 (19 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Palwinder Singh Sidhu

REPRESENTATIVE:  Mr Ramneek Sharma (MARN: 2318116)

CASE NUMBER:  2211224

HOME AFFAIRS REFERENCE(S):          BCC2021/324958

MEMBER:Wendy Banfield

DATE:19 May 2024

PLACE OF DECISION:  Canberra

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

Statement made on 19 May 2024 at 5:07pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – genuine temporary entrant – multiple course cancellations – limited academic progress – health issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 499; Direction No 108
Migration Regulations 1994, Schedule 2 cl 500.212

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 14 July 2022 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 5 March 2021. 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 (Cth) (the Regulations) because they were not satisfied the applicant had demonstrated they meet the genuine temporary entrant criteria.

4. On 10 August 2023 the Tribunal invited the applicant to provide information. He was advised that to be granted a visa he must be enrolled in a registered course of study; and a genuine applicant for entry and stay as a student. The applicant was also advised the information requested is set out in the online Request for Student Visa Information form and a link to the form was included. The applicant was instructed the form could be submitted online or printed and returned in hard copy.

5. On 24 August 2023 the applicant, through his migration agent requested an additional week to provide the requested information because the applicant “is facing some medical issues”. Although no medical evidence was provided, the Tribunal agreed to the request for an extension of time. The applicant then submitted copies of his COEs, a GTE statement, and evidence that he completed a Diploma of Business but did not provide a completed Student Visa Information form.

6. The applicant submitted the following evidence to the Tribunal:

   ·Applicant’s Indian passport biometric information.

   ·Department of Home Affairs (the Department) notification and decision record dated 14 July 2022.

   ·Confirmation of enrolment (COE) for a Certificate III in Commercial Cookery from 11/09/2023 to 09/09/2024.

   ·COE for a Certificate IV in Kitchen Management from 16/09/2024 to 17/03/2025.

   ·COE for a Diploma of Hospitality Management from 24/03/2025 to 22/09/2025.

   ·Genuine temporary entrant (GTE) statements dated 31 August 2023 and 21 November 2023.

   ·Letter and academic transcript from Atlantis College of Management dated 20 February 2020.

   ·Copies of letters from Western Health Outpatients clinic scheduling appointments for the applicant in April, July, August and September 2023.

   ·Printout titled ‘Assignments’ recording dates and listing assignments related to hospitality.

7. The Tribunal also considered the evidence provided to the Department at the time of application. This consisted of: Student Visa Application form; applicant’s Indian passport biometric information; academic transcript and completion letter for a Diploma of Business; genuine temporary entrant statement; Overseas Student Health Cover certificate; financial support documents.

8. The applicant appeared before the Tribunal on 22 November 2023 to give evidence and present arguments. The applicant was assisted in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 is a genuine applicant for entry and stay as a student who intends genuinely to stay in Australia temporarily as required for the grant of a student visa.

11. 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?

12. In considering whether the applicant satisfies cl 500.212(a), the Tribunal must have regard to Direction No 108, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s 499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

13. 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.

14. The Tribunal considered the applicant’s circumstances in his home country including whether he has reasonable reasons for not undertaking the study in his home country. In his written statement to the Department at the time of application, the applicant set out reasons why he chose to study in Australia, his reasons being the lack of vocational courses in India and the recognition of overseas qualifications. The Tribunal is satisfied the applicant has provided reasonable motives for choosing to study in Australia.

15. Regarding the extent of personal ties to his home country, the applicant’s parents and brother continue to live in India. The applicant completed high school and after taking an English exam, applied to study in Australia. The applicant did not declare any employment in his home country, nor any property or assets in his name, or economic ties. In his written submission to the Tribunal the applicant stated he misses his family and culture and is planning to return to a career the hospitality sector. The Tribunal accepts the applicant has ongoing personal ties to India but is not satisfied those circumstances would serve as a significant incentive for him to return to his home country.

16. The Tribunal assessed the applicant’s circumstances in Australia. The applicant confirmed he first enrolled in a Diploma of Business from 5 November 2018 to 3 November 2019 but did not commence studying because of a family emergency that required him to be overseas. His enrolment was cancelled on 1 December 2018 as was his enrolment in an Advanced Diploma of Business. The applicant re-enrolled in a Diploma of Business beginning on 3 December 2018 and completed it on 2 December 2019. The applicant then enrolled in Certificates III and IV in Commercial Cookery, and a Diploma of Hospitality Management in 2020 but did not complete the courses because his health was affected by COVID-19. The applicant re-enrolled in the same courses, the first of which was to begin in 2022 but was unable to pay the fees.

17. The Tribunal notes that on 14 July 2022 the Department wrote to the applicant inviting him to comment on his lack of academic progress since arriving in Australia. It was put to him that his student visa was granted for him to study a Diploma and Advanced Diploma of Business with a completion date in 2020. However, of those courses, he only completed the Diploma of Business. The applicant did not reply to the Department’s invitation to comment. At the time he applied for a review of the Department’s decision to refuse his visa, the applicant had re-enrolled in the same three courses in cookery and hospitality that he first enrolled in in 2020 and subsequently had cancelled.

18. In his genuine temporary entrant statements to the Tribunal, the applicant described the setbacks he says he experienced as a student in Australia. He claimed he contracted COVID-19 in 2020 which together with the requirement for online learning, affected his mental well-being. The applicant also provided evidence of being diagnosed and treated for tuberculosis in 2021 which he said, required “rigorous treatment and recovery time” and affected his ability to study and work. According to the applicant, as he was unable to work his ability to pay his bills and course fees was affected.

19. The applicant has been in Australia for more than five years. The Tribunal accepts the applicant has faced some health issues during that time, however, the evidence does not explain his lack of overall progress as a student in that time. If the applicant was required to take time to recover from tuberculosis as he claims, it was open to him to return to his home country until he was fit to continue studying. The applicant said he remained onshore in order to undergo treatment which involved x-rays and antibiotics, but a student visa still requires the applicant to progress in his studies. Furthermore, international students are expected to have sufficient funds to support themselves and pay the fees for their courses in Australia. If the applicant was unable to do so, he should have returned to India until he was in a position to resume his education. The applicant is now intending to remain in Australia until at least September 2025 when his Diploma of Hospitality is due to be completed. The Tribunal finds nearly seven years in Australia to complete a series of relatively short vocational courses to be excessive. In addition, based on the applicant’s record to date, including enrolment cancellations, the Tribunal is not satisfied he will complete the courses he is currently enrolled in. This weighs against the applicant in assessing whether he is a genuine temporary entrant for study.

20. Regarding the value of the course to the applicant’s future, the Tribunal considered whether the applicant is seeking to undertake a course that is consistent with his current level of education. The Tribunal notes the applicant completed high school before arriving in Australia. On that basis, the courses he has enrolled in are consistent with his education. The applicant submitted he said he aims to work in a managerial role in an international hotel and possibly open a restaurant or hotel in India in future. In his written submissions, the applicant provided details of the courses he is undertaking. He also outlined details about the hospitality industry in India and declared: “The number of international hotel chains entering the Indian market is steadily rising. With a Diploma in Hospitality Management, I can potentially secure managerial roles in these establishments or even pursue entrepreneurial routes by starting boutique hotels or niche travel experiences.” The applicant included details about the salaries and opportunities available for hotel managers and restaurant managers in India. The Tribunal accepts the applicant has provided some information about career options and is satisfied qualifications in hospitality may be of benefit to him in future. The applicant advised the Tribunal he worked in a restaurant in Australia but did not provide any details that would assist the Tribunal in assessing his claims regarding a future career. Since the Tribunal is not satisfied the applicant will complete his current studies because of his history of enrolment cancellations, the Tribunal is not satisfied he will pursue a career as a hotel or restaurant manager in India in future.  

21. The applicant’s immigration history refers to his visa and travel history. The applicant has been in Australia since December 2018. Up to the date of this decision, he has completed very little, and previous enrolments have been cancelled. There is no evidence the applicant applied for leave from his studies when he says he was unwell and unable to focus, which is the expected course of action. While there is no evidence the applicant has breached visa conditions, this weighs against him in assessing whether he meets the genuine temporary entrant criteria.

22. The Tribunal assessed the evidence individually and cumulatively. While there are some aspects of the applicant’s case that weigh somewhat in his favour such as his enrolment to study, on balance the weight of evidence is against the applicant in assessing whether he is a genuine temporary entrant for study. 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).

23. Based on the above, 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.

24. 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

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

    Wendy Banfield
    Member

    
    

    Attachment – Direction No.108

    DIRECTION NUMBER 108 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, CLARE O’NEIL, Minister for Home Affairs and Minister for Cyber Security give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 21 March 2024

    Clare O’Neil

    
    

    Minister for Home Affairs and Minister for Cyber Security

    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 - Preliminary

    Name of Direction

    This Direction is Direction No. 108 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 108.

    Commencement

    This Direction commences on 23 March 2024.

    Revocation

    Direction No. 69, given under section 499 of the Act, is revoked.

    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 - 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 or Student Guardian 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;

    d.whether 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.