Singh (Migration) - [2022] AATA 5078

Singh (Migration) [2022] AATA 5078 (29 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Parminder SINGH
REPRESENTATIVE:  Mr Harmandeep Singh (MARN: 1682139)
CASE NUMBER:  1927286
HOME AFFAIRS REFERENCE(S):          BCC2019/4063596
MEMBER:Mireya Hyland
DATE:29 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 29 April 2022 at 12:33pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa––applicant was not a genuine applicant for entry and stay as a student – applicant does not hold a current Confirmation of Enrolment in a course of study –Mr Singh has not been enrolled in any course of study since 2022– decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.111, 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 2019 to refuse to grant the applicant, Parminder Singh, a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (the Act).
Mr Singh applied for the visa on 16 August 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). Mr Singh applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mr Singh does not satisfy the requirements in cl.500.212 because he does not intend genuinely to stay in Australia temporarily. The delegate did not consider any requirements other than the criterion in cl.500.212(a). Mr Singh lodged an application for review of that decision with the Tribunal on 27 September 2019. It was constituted to the Tribunal on 3 November 2021. The delegate’s decision was provided to the Tribunal by Mr Singh with his review application.
Mr Singh was born in Punjab, India on 26 April 1998 and is 24 years of age. He has never been married or in a de facto relationship and has no children. His family consists of his parents who continue to support him, two older sisters, Baljit and Hardeep Kaur born 15 May 1988 and 22 October 1992 respectively, and a brother, Balwinder Singh born 5 March 1994. Mr Singh claims that his father is an ‘agriculturalist’ by profession who owns and farms agricultural land in India. Mr Singh’s highest level of schooling before leaving India was senior secondary school, the equivalent of Year 12 in Australia. He has been working for his father on the farm since finishing secondary school in April 2017.
Nirmal Singh Sarai, Mr Singh’s father, and his mother, Sukhwinder Kaur, came to Australia as the holders of Visitor (Class FA) Subclass 600 visas in 2017, 2018, and 2019. They most recently arrived in Australia on 25 February 2020 as the holders of Visitor visas that were granted on 14 August 2018 and ceased on 25 May 2020. They applied for further Visitor visas onshore which were granted on 29 June 2020 and ceased on 23 February 2021. They then became unlawful non-citizens. They were granted a Bridging Visa E (Class WE) Subclass 050 (BVE) on 8 April 2021 and two subsequent BVEs on 20 May 2021 and 3 September 2021 which ceased on 3 January 2022. The Tribunal notes they departed Australia on that date.
Mr Singh’s sister Baljit Kaur is a permanent resident through her marriage who is usually resident in Australia. His sister Hardeep Kaur arrived in Australia on a Visitor visa on 18 December 2019 that ceased on 18 March 2020. She enrolled in study and applied for a Student visa granted on 9 June 2020 that is in effect until 13 July 2022.
Mr Singh visited Australia with his parents in 2018. On 27 February 2019, Mr Singh re-entered Australia as the holder of a Visitor visa that ceased on 27 May 2019. He claims he came to visit family but then enrolled in a package course at Brisbane College of Horticulture comprised of a Certificate IV in Horticulture from 10 June 2019 to 17 January 2020 (CoE A9C40626), a Diploma of Horticulture from 10 February 2020 to 7 August 2020 (CoE A9C42383), and a Diploma of Agribusiness Management from 24 August 2020 to 6 August 2021 (CoE A9C42E24). On 28 May 2019, those enrolments were cancelled because Mr Singh informed Brisbane College that he no longer wished to study in Australia. He departed Australia on 24 May 2019.
Mr Singh arrived back in Australia on 22 July 2019 as the holder of a temporary Visitor visa that ceased on 22 October 2019, again, he claims, to visit family. However, again, he did not depart Australia on or before 22 October 2019. Instead, he enrolled at Brisbane College in another package course comprised of a Certificate IV in Horticulture from 12 August 2019 to 20 March 2020 (CoE ACDD8162), a Diploma of Horticulture from 13 April 2020 to 9 October 2020 (CoE ACDD8324), and a Diploma of Agribusiness Management from 26 October 2020 to 8 October 2021 (CoE ACDD8466). Mr Singh did not commence study on 12 August 2019 and those enrolments were cancelled on 4 October 2019. Mr Singh did not depart Australia.
There is no evidence that Mr Singh studied or was enrolled in any study from 4 October 2019 until he was contacted by the Tribunal in October 2021 and informed that it is a criterion for the grant of a Student visa that he be enrolled in a course of study. Mr Singh then enrolled at Brisbane College in a Certificate IV in Horticulture from 4 October 2021 to 13 May 2022 (CoE C8EC1246) and a Diploma of Horticulture from 4 July 2022 to 30 June 2023 (CoE C8EC1816). Those enrolments were cancelled on 9 February 2022 for non-payment of fees.
Mr Singh has been in Australia for almost three years. He has held eight enrolments in horticulture since 2019, all of which have been cancelled. There is no evidence that he has ever commenced any study in Australia. He has never completed a qualification while in Australia claiming to be a genuine student. Mr Singh remains in Australia.
On 8 July 2021, the Tribunal wrote to Mr Singh pursuant to s.359(2) of the Act, inviting him to provide information in writing about his enrolment (cl.500.211) and whether he is a genuine applicant for entry and stay as a student (cl.500.212). The invitation was sent to Mr Singh’s authorised recipient in accordance with s.379A and s.379G of the Act. It advised that if the information was not provided in writing within the prescribed period, being by 22 July 2021, or an extension of time was not given, the Tribunal may make a decision on the review without taking further steps to obtain the information and Mr Singh would lose any entitlement he had under the Act to a Tribunal hearing. Mr Singh did not request an extension of time and did not provide any information by 22 July 2021.
In these circumstances, s.359C of the Act applies and pursuant to s.360(3) Mr Singh is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has lost his or her entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[1] The Tribunal is satisfied that s.359C(1) and s.360(2)(b) of the Act apply to Mr Singh, and pursuant to s.360(3) of the Act Mr Singh is no longer entitled to appear before it to give evidence and present arguments relating to the issues in his case.[2] Unfortunately, therefore, the Tribunal is prevented by law from inviting Mr Singh to a hearing.
[1] M v MIMA (2006) 155 FCR 333 per Tracey J at [46] and MIMIA v Jing Shan Sun (2005) 146 FCR 498 at [50], also Hasran v MIAC (2010) 183 FCR 413 at [26] confirming the views in M v MIMA and MIMIA v Sun; cf. Khergamwala v MIAC [2007] FMCA 690 (Riley FM, 19 July 2007), however the preponderance of authority has followed MIMIA v Sun and M v MIMA rather than Khergamwala. Also see Giri v MIAC [2011] FMCA 282 (Cameron FM, 28 April 2011) at [21] and [29] upheld on appeal: Giri v MIAC [2011] FCA 928 (Greenwood J, 16 August 2011), and Lokuwithana v MIBP [2017] FCCA 176 (J Jones, 2 February 2017) at [115]-[121] where the Tribunal’s reliance on evidence given at a hearing that it lacked the power to hold resulted in jurisdictional error.
[2] Hasran v MIAC [2010] FCAFC 40.
On 7 October 2021, the Tribunal wrote to Mr Singh under s.359A of the Act inviting him to comment on or respond to certain information which it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal put to Mr Singh that there was information before it showing that he was not enrolled in a course of study and, therefore, may not meet one of the criteria (being cl.500.211) for the grant of a Student visa. Mr Singh was asked to provide the comments or response by 21 October 2021. On 19 October 2021, Mr Singh sent the Tribunal evidence that he was enrolled in courses at Brisbane College from 4 October 2021 to 30 June 2023.
On 23 November 2021, the Tribunal wrote to Mr Singh under s.359A of the Act inviting him to comment on or respond to certain information which it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. It put information about his study and his family’s migration history to him that might indicate that he does not meet one of the criteria (being cl.500.212) for the grant of a Student visa. Because it was unable to invite Mr Singh to a hearing, it also invited him to provide certain relevant additional information that would assist it in determining whether he intended genuinely to stay in Australia temporarily: cl.500.212(a). Mr Singh was asked to provide the comments or response and the additional information by 7 December 2021. As at the date of this decision Mr Singh has not responded to that 23 November letter.
On 14 April 2022, the Tribunal wrote to Mr Singh under s.359A of the Act inviting him to comment on or respond to certain information which it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal put to Mr Singh that again there was information before it showing that he was not enrolled in a course of study and, therefore, may not meet a criterion (being cl.500.211) for the grant of a Student visa. Mr Singh was asked to provide the comments or response by 28 April 2022. As at the date of this decision, Mr Singh has not responded.
The issues in this case are whether Mr Singh is enrolled in a course of study as defined in the Regulations. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
For a Student visa to be granted, an applicant is required to meet the primary criteria set out in cl.500.2 of the Regulations at the time of decision. These primary criteria include requirements relating to enrolment (cl.500.211) and being a genuine applicant for entry and stay in Australia as a student (cl.500.212). Although the delegate’s decision found that Mr Singh did not meet cl.500.212 because he was not a genuine temporary entrant to Australia, at the time of that decision Mr Singh was enrolled in a registered course. The Tribunal finds that it does not need to address the question of whether Mr Singh intends genuinely to stay in Australia temporarily because at the time of this decision he does not meet cl.500.211.
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). Mr Singh does not claim to meet any of the alternative criteria in cl 500.211 of the Regulations.
A ‘course of study’ is defined in cl.500.111 of the Regulations as, among other things, a ‘full-time registered course’. A ‘registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered under Division 3 in Part 2 of the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act) to provide the course to overseas students.
The Department of Education, Skills and Employment (DESE) is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and the Provider Registration and International Student Management System (PRISMS). PRISMS is a computer system developed by DESE in association with the Department of Home Affairs (DHA) to receive and store the information about accepted overseas students that is given to the Secretary under the ESOS Act. It provides a secure system for CRICOS registered educational institutions to issue ‘confirmations of enrolment’ (CoE) as evidence of enrolment in a CRICOS registered full-time course and reports changes in course enrolment, for instance unpaid fees, unsatisfactory attendance or course progress, ceasing study, changes to the duration of study, etc. The Tribunal is satisfied that a PRISMS search is reliable evidence of the enrolment in a full-time ‘registered course’ (as defined) of the person who is the subject of the search.
The Tribunal made a search of PRISMS on 29 April 2022 to verify whether Mr Singh is enrolled in a full-time registered course. The PRISMS search revealed that Mr Singh has not been enrolled in any course of study since 9 February 2022.
Therefore, the Tribunal is not satisfied that at the time of this decision, Mr Singh is enrolled in a course of study. The Tribunal finds that none of the other subclauses in cl.500.211 are relevant to Mr Singh and, accordingly, cl.500.211 is not met.
Given this finding, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. Mr Singh does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mireya Hyland
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;
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.