Singh (Migration)

[2021] AATA 3634

Singh (Migration) [2021] AATA 3634 (19 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vivek Singh

CASE NUMBER:  2001121

HOME AFFAIRS REFERENCE(S):          BCC2019/5850935

MEMBER:Deputy President J.L Redfern PSM

DATE:19 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2021 at 12:17 PM

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – whether the applicant meets the genuine temporary entrant criterion – applicant invited to provide information under s.359(2) of the Act – applicant provided written consent for the Tribunal to proceed to a decision without a hearing – not satisfied that the applicant has an intention genuinely to stay temporarily – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth), ss. 65, 359, 359C,360, 363A, 379A and 499
Migration Regulations 1994 (Cth), Sch 2 cl.500.2

CASES

Bala v Minister for Immigration and Border Protection [2019] FCA 600
Hasran v Minister for Immigration & Citizenship [2010] FCAFC 40
Singh v Minister for Immigration & Anor [2018] FCCA 3423

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 69, 18 April 2016
President’s Direction, Conducting Migration and Refugee Reviews, 1 August 2018

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 January 2020 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. I affirm the decision under review. My reasons follow.

   BACKGROUND AND RELEVANT LAW

3. The applicant is a 32-year-old national from India. He applied for a student visa on 19 November 2019. In his application for the visa, the applicant stated that he was enrolled in a Diploma of Project Management from November 2019 and that following this course, he intended to complete the Advanced Diploma of Program Management. This second course is due to finish in October 2021. According to the applicant, he wanted to acquire an international qualification so that on his return to India he could find employment in managerial roles.

4. 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.

5. For the visa to be granted, the applicant is required to meet the primary criteria set out in clause 500.2 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. These primary criteria include requirements relating to enrolment (cl 500.211), access to funds and financial capacity (cl 500.214) and being a genuine applicant for entry and stay as a student (cl 500.212). The applicant must also satisfy health insurance and public interest criteria and, if required by the Minister, to satisfy specified English proficiency requirements.[1] Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.

   [1] Clauses 500.215, 500.213 and 500.217 respectively of Schedule 2 to the Regulations.

6. Clause 500.211 provides that an applicant must meet one of the alternative grounds contained in the clause, including the requirement to be enrolled in a ‘course of study’ which is defined in cl. 500.111 to mean, amongst other things, study in a full-time ‘registered course'. A ‘registered course’ means a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students (reg 1.03 of the Regulations).

7. Clause 500.212 requires that the applicant be a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily[2] and intends to comply with any condition this subject to which the visa is granted.[3] There is a further requirement that the applicant meet any other relevant matter.[4] There are no other relevant matters prescribed and this is a broad provision which allows the decision-maker to have regard to other relevant factors that might indicate the applicant is not a genuine student. Departmental guidelines, which are not binding but instructive, state that the decision-maker should only refuse to grant a visa under cl.500.212(c) if the applicant satisfies all other Schedule 2 criteria, including the genuine temporary entrant criterion.

   [2] Clause 500.212(a) of Schedule 2 to the Regulations.

   [3] Clause 500.212(b) of Schedule 2 to the Regulations.

   [4] Clause 500.212(c) of Schedule 2 to the Regulations.

8. Clause 500.214 provides that an applicant for a student visa must have genuine access to funds of the kind specified and, if requested, an applicant must provide evidence of financial capacity that satisfies the requirements specified in an instrument.[5]

   [5] Refer subclauses 500.214(2) and (3). The relevant instrument is Evidence of Financial Capacity for Subclass 500 (Student) Visas and Subclass 590 (Student Guardian) Visas.

9. In this case, the delegate refused to grant the visa because he was not satisfied the applicant intended genuinely to stay temporarily in Australia and was therefore not satisfied, he met the requirements of cl.500.212 of Schedule 2 to the Regulations. The delegate was not satisfied on the material before him that the applicant was genuinely undertaking the proposed courses for the reasons he had declared and considered the applicant was more likely seeking to maintain residency in Australia. The grounds for the refusal are set out in the delegate’s written decision record dated 13 January 2020.

10. While the delegate noted that the applicant had family in India, he was not persuaded that the applicant had economic ties to India and was therefore not satisfied that the applicant could demonstrate, on balance, that he had sufficient ties to serve as a significant incentive to return to his home country. In relation to the applicant’s circumstances in Australia, the delegate noted that the applicant had lodged his application for a student visa only 12 days before his temporary graduate visa was due to cease and he had not demonstrated any other attempts to pursue further studies while he held this visa. The delegate concluded that the applicant’s lack of interest in studying raised serious concerns that he was attempting to use the visit student visa program to maintain residence in Australia. The delegate also had regard to the value of the proposed courses and noted that these courses were at significantly lower qualification level compared to his previous studies. According to the delegate, the applicant had not given any specific job descriptions for the roles he intended to apply for on his return to India and, on balance, the delegate was not satisfied that the additional courses would provide him with skills relevant to any future employment identified.

11. The applicant provided to the Department evidence in relation to other criteria for the student visa, but the delegate did not consider any requirements other than the criterion in cl.500.212.

12. On 22 January 2020, the applicant applied to the Tribunal for review of the refusal decision and attached the decision record to his application for review. The review was lodged by migration agent, Minhaja Hashim of KBA Global, on the applicant’s behalf.

13. On 11 March 2021 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide specified information in writing to satisfy the Tribunal that he met the requirements of both cls.500.211 (enrolment) and 500.212 (genuine temporary stay and entry). The invitation required a response by 25 March 2021.

14. The invitation included an online form headed ‘Request for Student Visa Information’ and attached a copy of Ministerial Direction No. 69. The relevance of this Direction is outlined later in my reasons.

15. The form provides information to the recipient about how to complete the form and requests specific information from the applicant, such as their personal details, the courses undertaken before arriving in Australia, information about travel to Australia and home country visits, information about other visas and information about current and proposed courses of study. The form also requests information about the applicant’s work in Australia, the applicant’s expenses and information about ‘other circumstances’, such as information about their family, community ties, assets in their homeland and future plans.

16. Relevantly, the form asked whether the applicant consented to the Tribunal deciding the review without a hearing. It is expressly noted that if the applicant consents to this, he would not be invited to appear at a hearing to give evidence and present arguments and that the decision of the Tribunal would be made based on the information and evidence before the Tribunal. It was further noted that the Tribunal may either affirm or set aside the decision under review. It was also noted that the Tribunal may consider criteria or issues that were not previously considered by the primary decision-maker. The applicant was provided with an ‘Information about Decisions’ fact sheet.

17. The applicant responded to the invitation on 24 March 2021 by completing the online form. He stated that he consented to the Tribunal deciding the case without a hearing. He otherwise completed the form, providing the information requested and attached a number of documents, which included Confirmation of enrolment (CoE) and documents showing the results of courses completed by him.

18. Section 360 of the Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments. However, s.360(2) of the Act provides exceptions to this requirement. Those exceptions apply if the Tribunal decides it can make a favourable decision on the material before it, or (relevant to the facts of this case) if the applicant consents to the review without appearing before the Tribunal or if a person is invited in writing under ss.359 or 359A of the Act to give information or to comment or respond to adverse information and does not give that information or comment or respond before the time for giving it has passed. Subsection 360(3) of the Act provides that if any of the paragraphs in s.360(2) apply the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.[6]

    [6]Hasran v MIAC [2010] FCAFC 40.

19. In this case the applicant has responded to the invitation to provide information within the prescribed period and he has responded to the question about whether he consents to the Tribunal conducting the review without him appearing before the Tribunal by answering ‘Yes, I/we consent to the Tribunal deciding the review without a hearing’. For an applicant to respond thus it is necessary for them to expressly choose this option in the online form. I am therefore satisfied that the applicant has consented to the review without a hearing and there is no evidence before me to suggest that this consent is other than informed. Accordingly, having regard to the applicant’s consent and the relevant legislative provisions, I have decided to proceed to determine the review on the basis of the material provided by the applicant to the Department and to the Tribunal.

    OUTLINE OF EVIDENCE

20. The application for the applicant’s student visa was lodged online and submitted by a migration agent. For completeness, although nothing turns on this, I note that the migration agent who lodged the application for the visa is a different migration agent from the agent who lodged the application for this review.

21. The applicant answered all questions in the application and the following is a summary of the information provided in the application and in the accompanying documents:

    (1)The applicant lived in the state of Haryana in India. He has four immediate family members who reside in India, his parents and two married sisters. The application does not make reference to any relatives living in Australia.

    (2)The applicant has a Bachelor of Science from a University in India and he has completed two master’s degrees in professional accounting and business administration as part of his studies in Australia between 2015 and 2017.

    (3)In answer to the question about whether he had visited any countries in the past 10 years, the applicant answered ‘yes’ but it is apparent that the only country visited was a return trip to India for approximately one month in 2018.

    (4)The applicant previously held a temporary graduate visa subclass 485 in Australia (further details were provided about this in the applicant’s response to the Tribunal) and no other visas are recorded in either Australia or any other country.

    (5)In answer to the questions about whether he had ever been convicted of any offence, the applicant responded to the negative, including in answer the question about whether he had ever been removed, deported or excluded from any country.

    (6)The applicant provided number of documents in support of his application, including a confirmation of enrolment for his proposed studies, being a Diploma of Project Management and an Advanced Diploma of Program Management, together with supporting financial information, details of his previous qualifications and a confirmation from the Homes Institute that he completed the Master of Professional Accounting and Master of Business Administration by August 2017. He provided a copy of his academic transcript for both degrees.

    (7)In addition to this documentation, the applicant provided a ‘statement of purpose’ for the study to the following effect. He noted that his previous education had ‘laid a strong foundation’ and that on acquiring his bachelor’s degree from India, he realised to have a successful career in the future he would need to acquire an international qualification. The applicant stated that he chose Australia to study because it offered one of the best educational qualifications, ‘matching global and international standards.’ He had decided to study the professional accounting and business administration degrees because he considered this would give him ‘huge market scope’ in his home country. He also wanted to obtain international industry experience and he planned to return to India, start his career and stay with his family to look after his parents. He believed that international qualifications in Australia would make him ‘stand out from his peers’ while competing for these jobs. After he completed the master’s degrees, he decided he would pursue the project and program management courses in Australia because this would be well recognised in the world and this would assist him to successfully run projects in a company. The applicant also stated that after he finished his master’s degrees he had worked as an intern as an internal assistant accountant. The course offered by International House Sydney was well right recognised and, while short in duration, the course structure was ‘impressively well planned’. The applicant outlined the areas that he wished to study during the course and stated that after completing the courses, he would return to India where he planned to take up a manager’s role. Possible career positions that he was planning were account manager, alliance manager, business relationships manager, project manager, customer success manager and major account executive.

22. In response to the request for information, the applicant provided updated CoE’s. He provided a certificate from International House Sydney issued on 24 December 2020 noting that he had fulfilled the requirements for the Diploma of Project Management. He also provided a transcript of his results which showed that he had completed the course with credits. The applicant provided a CoE confirming his enrolment in the Advanced Diploma of Program Management which commenced on 2 November 2020. This CoE confirmed that the applicant was studying this course. The absence of evidence to the contrary, I accept that this is the case. I also accept that this course is due to be completed in October 2021.

23. In answer to the online form, the applicant provided further details in relation to his previous visas and enrolments. According to the applicant, he was first granted a student visa in November 2014, which expired in August 2016. In November 2014, he enrolled in a Master of Business Administration course with Charles Darwin University, Melbourne, which he did not complete. He later enrolled in the master’s degree courses with the Homes Institute which commenced in July 2015 and finished in July 2017. He was granted a second student visa in in October 2016, which expired in September 2017 and was then granted a temporary graduate subclass 485 visa in December 2017. This visa expired in December 2019. As such, according to the applicant, and there is no evidence to the contrary, he studied continuously from at least July 2015 until August 2017, when he completed his previous studies. The applicant notes that between November 2017 and November 2018 he undertook what he describes as a ‘professional year’, although little detail has been provided about this, other than that this was done through the Performance Education Group, Melbourne. The applicant has been involved in study since November 2019 to date.

24. In response to the question about why he was undertaking the study, the applicant repeated the information contained in his previous statement to the effect that he believed undertaking business and accounting studies would open career opportunities for him. He also stated that he believed that students who study in Australia had an advantage over other students and this would assist him in obtaining a job on his return to India.

25. The applicant set out the details of his employment since living in Australia. Relevantly, the applicant worked as a personal care assistant in aged care between August 2015 and October 2019, earning an annual salary of $39,000, and as a disability support worker from December 2019, earning an annual salary of $55,000 in the first year which significantly reduced to approximately $5000 in the following year. He worked in a pizza shop and as a delivery driver from August to November 2020 earning about $5000. There are no further details provided about employment after this date.

26. The applicant stated that he kept in constant contact with his family and that he had a video call with them almost every day. He was planning to return home soon as travel restrictions were over. He stated that as both his parents were old and is the only male child, it would be his responsibility to take care of them. He planned to finish his studies and return to live with his parents. They lived on farmland. The house was old, and this needed to be looked after. The applicant also noted that he had extended family in India which included his uncles, aunts and cousins. He also had friends and had a strong connection with his family and friends.

27. According to the applicant, international companies such as Google and Facebook were planning to invest in India after COVID-19, Apple had already invested and there were 32 mining projects which have been approved in India in recent times. With all these foreign investments and projects starting in India, he believed there was a big job market in India and with his qualifications, he would be able to obtain good employment. The applicant also stated that in India account managers have an average starting salary package of $20,000 per annum, finance managers $25,000 per annum and project managers $30,000 per annum. This is a good package remuneration package in India. Furthermore, he considered that there were opportunities for Indian nationals working in the United Arab Emirates and that he could earn up to $84,000 in Dubai as a project manager.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Overview

1. Based on the information provided by the applicant that he is currently enrolled in a course of study, I am satisfied the requirement in cl.500.211 is met. As such, the issue in the present case is whether the applicant meets the requirements of cl.500.212 at the time of my decision, namely whether I am satisfied that he is a genuine applicant for entry and stay as a student.

2. Clause 500.212 provides 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.

   Intention genuinely to stay in Australia temporarily

3. In considering whether an applicant satisfies cl.500.212(a), I 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. Section 499 provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers.

4. 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.

5. 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 and reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion. [7]

   [7] Direction No.69, Part 2 at [1].

6. This was confirmed in Nguyen v MIBP [2013] FCCA 1864 and more recently in Singh v MIBP [2018] FCCA 3423 where the Court found that the previous direction, which included a similar provision as contained in Direction No. 69, is not intended to be construed as a checklist but the factors are all matters for the decision-maker ‘to think about and weigh up’.[8] The Federal Court provided further helpful guidance on this issue in Bala v MIBP [2019] FCA 600 where the Court found that, even though the Tribunal decision did not specifically refer to certain factors included in the direction, it did not follow that those factors were not considered and in the circumstances of the case:

   .. it is reasonable to infer that matters not mentioned were considered, though not sufficiently germane to the Tribunal’s decision to warrant express mention, separately or collectively.[9]

   [8] Singh v MIBP [2018] FCCA 3423 at [17] and [18].

   [9] Bala v MIBP [2019] FCA 600 at [17]–[18].

7. Not all factors set out in Direction No.69 are relevant to of this case. My consideration of those matters is set out below.

   The applicant’s circumstances

8. Direction No.69 provides the decision-makers should have regard to the applicant’s circumstances in their home country and their potential circumstances in Australia and should also have regard to the value of the course to the applicant’s future. According to the Direction, weight should be placed on an applicant’s circumstances that indicate the student visa is intended primarily for maintaining residence in Australia.

9. The Direction gives further guidance on considering the applicant’s circumstances in their home country and notes that decision-makers should have regard to whether the applicant has reasonable reasons for not undertaking the study in their home country if a similar course is already available there, the extent of the applicant’s personal ties to their home country (such as family, community and employment ties) and whether those circumstances would serve as a significant incentive to return, the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country, including consideration of those circumstances relative to the home country and to Australia and finally whether there are military service commitments or political and civil unrest in the applicant’s home country that would be a significant incentive or motive not to return their home country.

10. When considering the applicant’s potential circumstances in Australia, the Direction notes that decision-makers should have regard to factors such as the applicant’s ties with Australia, both community and family, which would present as a strong incentive to remain, any evidence that the student visa program is being used to circumvent the intentions of the migration program or is being used to maintain ongoing residence, whether any primary and secondary applicants have entered into a contrived relationship to facilitate a successful student visa outcome and the applicant’s knowledge of living in Australia and their intended course of study and the education provider chosen.

11. In considering the value of the course to the applicant’s future, decision-makers are directed to consider whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist them to obtain employment or improve employment prospects in their home country or a third country, the relevance of the course to the student’s proposed future employment in their home country and the remuneration the applicant would expect to receive in home country or third country, compared to Australia using the qualifications to be gained from the proposed course of study.

12. There is no evidence about whether there is a similar course available to the applicant in India and, in any event, the applicant’s key contention is that he has chosen the course in Australia because he believes that a tertiary qualification from Australia has greater reputational weight in his country. I accept that this may be the case. It is also apparent that the applicant has significant personal ties with India, being his family and friends, and there are no particular circumstances in India which would be a disincentive for him to return, such as military service or political and civil unrest. The applicant points to increasing employment opportunities in India, which may be correct, although there does not appear to be any particular economic incentive for the applicant to return. Relevantly, the applicant does not own any assets in India, and he does not point to any particular role or economic opportunity in India that he has identified that would provide an incentive for him to return. The applicant refers to a family farm and a house owned by his parents. While this is not an asset owned by the applicant, I accept that there is significant incentive for him to return to assist his parents, particularly given that he is the only son and his two sisters are married.

13. In contrast, the applicant does not have any family ties in Australia, however, I note that the applicant has now lived in Australia for seven years which suggests he may have, or may have developed, significant ties with the community. There is no evidence that the applicant has entered into a contrived relationship and he appears to have a good understanding of his proposed course of study, although his references in his submissions to the educational provider, Sydney International, are general in nature and do not give any real insight as to why he chose this provider.

14. These matters, when considered together, do not tend to weigh strongly either way in relation to the applicant’s intentions.

15. One of the key issues in this case is why the applicant chose to enrol in these courses, two years after he had completed his previous master’s degrees, and why these courses present specific value to any proposed future employment opportunities in India, or elsewhere. The applicant has previously obtained a science degree from a University in India. After apparently deciding to change his career and expand his skill set, he then obtained master’s degrees in public accounting and business administration. These qualifications are consistent with his stated objective to broaden his skills and to work with large companies on his return to India. What is difficult to understand, and in this regard, there is force in the concerns raised by the delegate, is why he waited so long to enrol in these courses and to progress his studies. After he completed his master’s degrees, the applicant was granted a temporary graduate visa in December 2017 which, according to the decision of the delegate and the information provided by the applicant in response to the request by the Tribunal for further information, was due to expire in December 2019.

16. The temporary graduate subclass 485 visa allows an international student to live, study and work temporarily in Australia (for between two and four years) after they have finished their studies. Prior to the COVID-19 pandemic, this visa could not be extended. There is little detail about what the applicant did over these two years, although he describes the first year as his ‘professional year’ between 2017 and 2018 with Performance Education Group, Melbourne. According to the website for the company, it provides internships for international students as part of a professional year. There is a brief reference in the applicant’s statement of purpose to being an intern as an internal assistant accountant. However, there is no further information about what the applicant did between 2018 and the start of his courses in November 2019, other than the employment that he apparently undertook as a personal care assistant in an aged care facility until October 2019. This is allowed under the visa but it is relevant to note that the applicant has not provided any evidence that he worked in roles to obtain experience in his proposed chosen profession after he obtained his master’s degrees and before he enrolled in the Diploma courses with International House. The internship was presumably in furtherance of an accounting career for the course he had finished in 2017. The fact that the applicant did not seek any opportunities in project or program management appears to counter his stated ambitions and future plans and the reason why he states he enrolled in these courses over two years after completing the previous courses.

17. Based on the information provided by the applicant about his work since arriving in Australia, it is apparent that he worked predominantly as a personal carer in aged care and in disability care. While these are important roles where there have been well reported shortages of skilled workers, the qualifications that the has applicant obtained and that he is currently studying do not appear to be relevant to the performance or exercise of any functions in those roles.

18. As such, like the delegate, I also consider that it is relevant the applicant did not make application for these courses sooner and the timing of the application, just before his subclass 485 visa expired, raises concerns about whether the motivation for the applicant enrolling in these courses was to prolong his stay in Australia and maintain ongoing residence.

19. Added to these concerns is the fact that the applicant’s statement of how he proposes to use the additional project and program management qualifications to secure future employment is both general and vague. While the applicant was able to point to additional investment in India by large companies such as Google, Apple and Facebook, he did not provide any detail about the nature of the investment and the types of roles that may be generated by this investment to provide anything other than a superficial observation about things that he may be able to do with these additional qualifications. For instance, the applicant referred to roles such as alliance, accounting or business relations manager roles, which are general descriptions of roles that, on their face, would be roles that he could have performed using his previous qualifications. While I accept that the role of project manager is a role that would be facilitated by having completed a diploma in project management or program management, the applicant’s statement of purpose that accompanied his application for the visa and the further information provided by him to the Tribunal about job opportunities and future plans is unconvincing and vague. If a student is proposing to study two courses over a period of nearly 2 years, it would be expected that the purpose of those studies and the value to future employment prospects would be able to be sufficiently articulated in his original application and in response to the Tribunal’s request for further information.

20. Notably, the applicant has not done this even though he is now been invited on two occasions to do so, first, when he made his application and, secondly, when he responded to the Tribunal’s request for further information. This tends to suggest that the applicant is not particularly committed to or engaged in these in these courses. However, against this it should be noted that the applicant has already completed one of the courses and there is evidence that he is continuing to study the second course, which is expected to be finalised in the next three months. This evinces a commitment to complete the courses but does not, of itself, evince an intention to genuinely stay temporarily in Australia. This is because it is possible that the applicant enrolled in the courses to prolong his stay rather than as a genuine desire to obtain qualifications to enhance his employment opportunities, after which he would immediately return to his home country. In this regard, it is relevant to note that these courses are at a lower level than his previous qualifications and are relatively inexpensive at $6000 per course.

21. Another significant issue that raises concerns is the statement made by the applicant that when he returns to India, he is committed to living with his parents to care for them and to assist them with the farm that they own. This is inconsistent with the notion that the applicant proposes to find a corporate or high-level government role using the qualifications that he has obtained in Australia. It is also entirely inconsistent with the notion that he would obtain employment in the United Arab Emirates.

22. On balance, I am not persuaded, having regard to the applicant’s circumstances in Australia and in his home country, that these matters weigh in favour of a finding that the applicant has an intention genuinely to stay temporarily in Australia. I give considerable weight to the vague and inconsistent information provided by the applicant, the fact that he enrolled in these courses just before the expiry of his subclass 485 visa and the fact that he could not clearly articulate why these courses were of particular value to his future plans and employment prospects. The previous courses studied by the applicant and completed in 2017, together with the professional years he says he undertook between 2017 and 2018, would have facilitated the applicant’s stated desire to enhance his prospects for employment in his home country with large international corporations or government. It is also relevant to note that the applicant’s stated intention to return home to look after his parents is inconsistent with his contentions about the purpose for the study in November 2019.

    The applicant’s immigration history

23. It is noted that the applicant’s immigration history refers to both their visa and travel history. The Direction notes that decision-makers should have regard to factors such as previous visa applications for Australia or other countries, including whether the applicant has previously applied for an Australian temporary or permanent visa or if the applicant has previously applied for visas to other countries, whether the applicant was refused visa and the circumstances that led to the refusal.

24. The Direction also notes that decision-makers should have regard to previous travels to Australia and to other countries and, if the applicant has previously travelled to Australia, whether they have complied with the conditions of their visa and left before the visa ceased and, if not , whether this related to circumstances beyond their control, whether the applicant previously held a visa that was cancelled or considered for cancellation, the amount of time the applicant has spent in Australia and whether the student 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. Factors such as whether the applicant has travelled to countries other than Australia and whether they have complied with migration laws in that country in the circumstances around any non-compliance should also be considered.

25. In this case, there is no evidence to suggest that the applicant has previously travelled to Australia, or that he has travelled to other countries or failed to comply with immigration laws in other countries or in Australia. The applicant first arrived in Australia in November 2014 and, while he did not complete the first course that he enrolled in, there is evidence that he subsequently completed the other courses and therefore complied with visa conditions on the student visas. There is no evidence that he has otherwise breached visa conditions or that he has remained in Australia unlawfully.

26. Notwithstanding this, the applicant has lived, studied and worked in Australia since late 2014 and has spent over six and a half years in Australia on a number of temporary visas. The first student visa expired without the applicant having completed the proposed courses, necessitating a further application and enrolments in new courses. The applicant was able to successfully complete those courses within the period and obtained a subclass 485 visa on the expiry of the second student visa, which he was entitled to do. This visa is also a temporary visa which was granted for a period of two years and which could not have been extended at that time. Near the end of this visa, the applicant then applied for a further temporary visa for two years, which was refused but if it had been granted the period of the visa would expire within the next 3 to 4 months.

27. In short, this is a lengthy period of time to have remained in Australia on temporary visas. While the first three applications are explicable, this fourth application for a temporary visa for further study raises significant concerns, particularly when my findings about the applicant’s circumstances are taken into account. In summary, the applicant’s immigration history and the length of time he has spent it Australia, together with my findings about his circumstances in Australia and his home country, tends to support an inference that this application for a third student visa and the enrolment in the diploma courses was, at the relevant time, and remains primarily for the purpose of maintaining ongoing residence in Australia.

    Where the applicant is a minor

1. The Direction provides guidance where the primary or secondary applicant for the visa is a minor. Because the applicant is not a minor this factor is not relevant to my considerations.

   Other relevant information

2. Finally, the Direction includes a ‘catch-all’ provision states that decision-makers should have regard to any other ‘relevant’ information provided by the applicant or otherwise available to the decision-maker, which includes information that may be either beneficial or unfavourable to the applicant. I have not identified any further information that would be relevant to this review.

   Findings

3. Even though the applicant enrolled in and has completed a diploma course and is in the process of completing an advanced diploma course as contemplated in his application for the visa, based on my findings above and on the material before me, I am not satisfied that the applicant is genuinely undertaking the proposed courses for the reasons he contends but rather that he is more likely seeking to maintain residency in Australia. I am therefore not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant the applicant does not meet cl.500.212(a).

   Conclusion

4. I do not need to consider the remaining criteria in cl.500.212 because a visa applicant must satisfy all three criteria in cl.500.212 and the failure to meet any one of the criteria means the applicant cannot meet cl.500.212. Accordingly, I am not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

5. Given the above findings, I find 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

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

   J.L Redfern PSM
   Deputy President

   
   

   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.