Singh (Migration)

Singh (Migration) [2021] AATA 2937 (21 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manjinder Singh
CASE NUMBER:  1934144
HOME AFFAIRS REFERENCE(S):          BCC2019/4732212
MEMBER:Warren Stooke
DATE:21 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 21 July 2021 at 9:42am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – genuine student – value of courses to the applicant’s future – land ownership in India – development of farming business – maintaining residence in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 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 15 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 20 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate gave weight to the lack of apparent value of the courses to the applicant’s future and to be using the student visa program as a means of maintaining residence in Australia.
The applicant appeared before the Tribunal on 20 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant provided the Tribunal with a copy of the delegate’s decision prior to hearing, which was confirmed in the hearing.
The applicant stated that he understood the visa application was refused because the decision said he was not a genuine student and that he had to return to his country.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 temporary entrant for the stay and entry as a student.
The applicant provided evidence that he was granted an initial Entertainment Activities (Class GG subclass 408) visa on 20 August 2019, which the delegate noted was valid until 22 September 2019, however, the applicant claimed the visa expired in February 2020. The applicant confirmed to the Tribunal that he arrived in Australia on 22 August 2019.
The applicant applied for a Student 500 visa on 20 September 2019, which was prior to the expiry of the applicant’s initial Entertainment Activities (Class GG subclass 408) on 22 September 2019.
The applicant was granted a Bridging Visa A on 20 September 2020 with an 8107 work limitation. The 408 visa held by the visa holder was granted either to allow the applicant to be employed by a particular employer, or to undertake specific activities in Australia other than employment.
The applicant provided the Tribunal with evidence that he possesses confirmation of enrolment for the following courses of study:
a.Albright Institute of Business and Language - Diploma of Leadership and Management from 10/2019 to 10/2020;
b.Albright Institute of Business and Language – Advanced Diploma of Leadership and Management from 11/2020 to 11/2021
The applicant stated in evidence that he commenced the Advanced Diploma of Leadership and Management in November 2020 and that it will finish in November 2021.
The applicant provided evidence of a Statement of Attainment dated 17 December 2020 from the Albright Institute of Business and Language that identified competencies that were completed and it stated: “These competencies form part of BSB51918 Diploma of Leadership and Management”. The document identified the completion of 9 subjects towards the Diploma.
The applicant provided evidence regarding the value of the course to his future with the statement that he wanted to expand his business at the higher level, which he described as a 10 acre farming business and with the potential to lease another 10 acres in the future. He stated that the farm has wheat, rice and sugar-cane and that the property is his father’s.
The applicant stated that when he came to Australia, he liked the education system and his father said – ‘if you want to study, come back when you finish’. The applicant stated that he decided within 3 weeks whilst he was subject to an Entertainment Activities (Class GG subclass 408) visa, to undertake the courses of study.
The applicant provided evidence that he has not returned home since arriving in Australia, as he could not due to coronavirus.
The applicant stated that he lives in Melbourne and is sharing, and that he has no work rights but his father is supporting him.
The applicant stated that he has a mother and father and sister in India, with whom he stated he was regularly in touch.
The applicant stated that he has land and a house in India, which he claimed are valued at $300,000 and $100,000, respectively.
The applicant provided the following response to the Tribunal’s s359(2) request for information:
“I wish to complete my studies and return to India to support my father business where I can lead and manage my team effectively. At this growing age, it is very hard for one to lead the business without proper knowledge. When I start the business and assist my father, I will have at least 10 people working for me in the initial stages as farmers and in other
roles. So, it is necessary for me to gain leadership and management skills. I will return to India by end of this year and first assist my father in our business. My main focus will be on looking after the agriculture business first.
In The initial stages, I will earn around INR60,000 per month. Then with my fathers expertise and my passion, I will take over the business and I can then earn INR1,00,000.”
The Tribunal asked the applicant if he expected to have difficulty to be able to assimilate back into Indian society and he responded: “No”.
The Tribunal asked the applicant if there was any reason that would preclude him from returning to India and he responded: “No. I won’t have any difficulty”.
The Tribunal asked the applicant ‘what is your business plan’ and the applicant was not able to provide a specific response but prior to hearing had provided the following response to the Tribunal’s s359(2) request for information:
“Farming, the need for mankind to sustain, is the growing sector every year. I wish to utilise this opportunity to establish my own business by taking over it from my father who is currently handling it. With the plan to employ 10 experienced personnel comprising of farmers, packers, transport drivers, I will be operating this business. I will utilise the farming skills gained from my father along with assistance from experienced personnel in my team to farm the 7 acres of agricultural land. With the use of advanced farming equipment and techniques, I will produce quality crops.
The business operations including but not limited to farming, marketing, dealing with clients etc will be solely handled by me. I wish to give a break to my father from his work after many years. The farming activities will take place at my village Lakhanpur and the office will be leased at Fatehgarh Sahib so that it can be easy for commute. The farming activities will take place in early morning starting from 6AM and will finish my 2PM. The office to interact with customers and third-party agents will open from 12PM till PM. In our agriculture land I will grow Wheat, sugarcane, rice crops. Additionally, I will be opening a weekend market in our village where people can directly buy crops from our farms. This business will benefit the economy and society in terms of providing jobs and improving the economy. As the Economy will be benefited from building a skilled workforce who will work & add benefit to the government by way of higher tax revenues.”
The applicant also provided an outline of costing for his farming business, which he estimated to be 1,05,000 (Indian rupees)
The Tribunal asked the applicant, if it was his motivation to remain in Australia permanently and he responded: “No. I have a business in India. I do not need to stay here”. The applicant stated that he was doing the course related to his business and that he did not need to do any further degrees here.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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, 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.
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.
The Tribunal has considered the evidence, provided by the applicant, in the context of Direction 69, and finds that the applicant is not a genuine temporary entrant for stay and study, for the following reasons:
a.The Tribunal notes that the applicant arrived in Australia on 22 August 2019 on a Temporary Entertainment Activities (Class GG subclass 408) visa valid until 22 September 2019 and the Tribunal acknowledges that it is not prohibited under the legislation to apply for a Student 500 Visa whilst onshore, on a Visitor Visa. However, the Tribunal finds that the applicant applied for a Student 500 visa two days prior to the expiry of his 408 visa, which the Tribunal views was for the purposes of extending the applicant’s stay in Australia. In this regard, the Tribunal does not accept the applicant’s claim that his 408 visa expired in February 2020 and that the delegate’s record, which was provided by the applicant, has the correct date of 22 September 2019 for the expiry of the 408 visa;
b.The Tribunal is not satisfied that the applicant has a strong tie to his home country having not returned to India at the expiration of his Temporary Entertainment Activities (Class GG subclass 408) visa on 22 September 2019. The Tribunal finds, on balance, that the applicant remained in Australia on the basis of an impending departure and has stronger ties to Australia to maintain a lifestyle and residency. In this regard, the Tribunal finds that the applicant chose to enrol in low cost and short duration Diploma courses that have not been adequately explained in terms of how the courses relate to his claimed farming business.
On balance, the Tribunal considers that the applicant has stronger ties to Australia, through residency and lifestyle, than with his Indian family and future prospects in India given that he did not return to India upon the expiration of his Temporary Entertainment Activities (Class GG subclass 408) visa on 22 September 2019.
Further, there is no evidence before the Tribunal that would suggest that the applicant has any reason not to return to India and that to the contrary there is every indication that the applicant has developed a desire to remain in Australia, for the purposes of residency and the lifestyle. As such, the Tribunal is satisfied upon the review of the criteria pertaining to Direction 69 that there is no further material before the Tribunal to be considered, that would mitigate a finding that the applicant is not a temporary genuine entrant for stay and study in Australia.
Based on what is evidenced of the applicant’s circumstances overall, in the absence of any other relevant information, including her 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 temporary entry and stay as a student. As such, the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
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.

[2021] AATA 2937

21 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction