Singh (Migration)

[2020] AATA 6102

Singh (Migration) [2020] AATA 6102 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Basantdeep Singh

CASE NUMBER:  1918525

HOME AFFAIRS REFERENCE(S):          BCC2019/1682095

MEMBER:T. Quinn

DATE: 11 December2020

PLACE OF DECISION:  Melbourne

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

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

Statement made on 11 December 2020 at 12:20pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine applicant for entry and stay as a student temporarily – study is relatively consistent with the applicant’s current level of education – reasonable reasons for not undertaking the study in his home country– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 338,347, 359, 360
Migration Regulations 1994, Schedule 2, cl 500,212

CASES
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Tshering v Minister for Home Affairs [2019] FCCA 2667

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 20 June 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 4 April 2019 (‘the application’).   At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 20 June 2019, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

4. On 10 July 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 17 months have elapsed since the making of the delegate’s decision and the applicant’s application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicant’s personal circumstances bearing upon their visa application may have changed during that time. The Tribunal considered that it would be beneficial for the applicant to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 27 April 2020, the Tribunal wrote to the applicant, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the applicant was undertaking and their entry and stay in Australia as a student (‘the s359(2) letter’). The applicant sought and was granted an extension of time within which to respond to the s359(2) letter and subsequently provided the requested information on 26 May 2020 which was within the extended prescribed timeframe and has submitted further material since that time.

6. The applicant was listed to appear before the Tribunal on 9 December 2020 for a telephone hearing to give evidence and present arguments, however, the Tribunal has considered the material filed by the applicant and determined that a decision can be made without the need for a hearing on the basis of that material.  

7. The applicant was assisted in relation to the review by their registered migration agent.

8. The Tribunal has proceeded to a decision having regard to all the information before it, including the Department file and all material and evidence provided by the applicant to the Tribunal.

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

   STATUTORY FRAMEWORK

10. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

11. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction requires the Tribunal to have regard to a number of specified factors in relation to:

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

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

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

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

13. The Direction indicates that the factors specified should not be used as a checklist, but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[1]  Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.  In this regard, the Tribunal also notes the decision of Judge McNab in Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]), wherein his Honour referred to the decisions of Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]) and Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) in relation to the proper approach to the consideration of guidelines such as the Direction. Most pertinently, his Honour endorses the view espoused in those cases, that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The applicant in this case is a 28-year-old male Indian citizen who first arrived in Australia on 20 October 2018 as the holder of visitor visa.[2]  However, he then made the application which is the subject of the present review, to stay until November 2021.[3]  This raises concerns for the Tribunal about the true nature of the applicant’s intentions.

    [2] See delegate’s decision and applicant’s response to the s359(2) letter.

    [3] See delegate’s decision and applicant’s response to the s359(2) letter.

16. Prior to coming to Australia, the applicant completed High School in 2009 and then undertook a Diploma in Aviation, Hospitality and Travel in 2014 as well as a first aid course in India.[4]  The applicant then worked in the family dairy business.[5]

    [4]See applicant’s response to the s359(2) letter.

    [5]See delegate’s decision.

17. The applicant’s application which was the subject of this review was to undertake a Diploma of Leadership and Management with a view to returning to expand the operations of the family dairy business.[6]  However, although the applicant undertook and completed five units in this course he then ceased that study and commenced a Diploma of Building and Construction (Building) (‘Diploma of BC’) .[7]  This perplexed the Tribunal, however, the applicant has made detailed submissions filed on 9 December 2020 explaining that he enrolled in the Diploma of Leadership and Management on the advice of his brother who wanted him to take over the family business in India and that this was also what the applicant’s parents wanted him to do.  In those submissions, the applicant went on to explain that he has always had a love of construction and that this field is his true passion and he expressed an enthusiasm for this course and his future career in this regard.  The Tribunal allows for reasonable changes to career and study pathways and notes that the applicant has already completed five units in his Diploma of BC.[8]  The Tribunal commends the applicant on his academic progress, particularly in circumstances where he has been onshore on the basis of a bridging visa managing the uncertainty of the outcome of this application. 

    [6]See delegate’s decision.

    [7]See applicant’s response to the s359(2) letter.

    [8]See applicant’s email to the Tribunal of 9 December 2020 enclosing transcript and progress.

18. The applicant now intends to return to his home country and seek work as a construction manager at a leading construction company where he claims he will earn a  higher salary than locally qualified candidates and his income is likely to be AUD18,529 equivalent using the qualification gained in India.[9]  The Tribunal accepts this course is relevant to and likely to assist and improve the applicant’s future career.  The Tribunal also notes this study is relatively consistent with the applicant’s current level of education.

    [9] See applicant’s response to the s359(2) letter and email of 9 December 2020 enclosing submissions.

19. The applicant lives with friends onshore and spends time exercising with them and going to his religious temple where he meets people from India and talks to them.[10]  His brother and sister also live onshore.[11]  His brother is married and has two children and is an Australian citizen.[12]  His sister is not a permanent resident of Australia but is married and has two children.[13]  The Tribunal considers it likely the applicant’s ties onshore could be presenting as a strong incentive for him to remain but does not have sufficient information before it to form any firm conclusions in this regard given the applicant has only been onshore for just over two years.  This factor will become more significant if the applicant applies for a further student visa after he completes his Diploma of BC, having made submissions that he will return to India upon completion of same in his present application.

    [10] See applicant’s response to the s359(2) letter.

    [11]See applicant’s response to the s359(2) letter.

    [12] See applicant’s response to the s359(2) letter and email of 9 December 2020 enclosing submissions.

    [13] See applicant’s response to the s359(2) letter and email of 9 December 2020 enclosing submissions.

20. The applicant has returned to India once since his arrival onshore for 31 days in January 2019 as per his visa condition.[14]  His wife, son and father live in India and he contacts them every day or two.[15]  He was a blood donor and involved with a blood donation organisation as well as playing volleyball in India prior to his travel to Australia.[16]  The Tribunal considers the applicant has community ties to India serving as an incentive for him to return but it is not clear whether those ties are serving as a significant incentive for him to return based on the evidence before the Tribunal at this time. 

    [14] See applicant’s response to the s359(2) letter.

    [15] See applicant’s response to the s359(2) letter.

    [16] See applicant’s response to the s359(2) letter.

21. The applicant is not working onshore, and his brother is supporting him financially.[17]  He states that he has expenses in Australia of AUD1,360 per month.[18]  The applicant owns a mobile phone in Australia worth AUD1,500.[19]  The Tribunal notes that the United Nations Human Development Index ranks India as 129^th in the world as compared to Australia’s ranking of 6^th in the world.[20]  The Tribunal does not consider the applicant’s economic circumstances onshore are acting as a significant incentive for him to remain onshore at this time.

    [17] See applicant’s response to the s359(2) letter.

    [18] See applicant’s response to the s359(2) letter.

    [19]See applicant’s response to the s359(2) letter.

    [20]See Table 1 of United Nations’ Human Development Report 2019 commencing at page 300 <>

    The applicant states that the quality and standard of education in Australia is ‘unreachable’ in India and describes a number of problems with the educational system in India in his response to the s359(2) letter. He submits that the benefit of an Australian qualification is far greater than that of an Indian one when seeking work in his home country.[21]  The Tribunal considers the applicant has provided reasonable reasons for not undertaking the study in his home country or region.

    [21] See applicant’s response to the s359(2) letter.

22. The Tribunal is concerned by the way in which the applicant came to be onshore (being on a visitor visa and only then, once onshore, applying for a student visa).  It is difficult for the Tribunal to accept that the applicant, in such a short space of time after his arrival onshore as a visitor, could have then promptly researched all study and living options and decided to remain onshore for a further three year period.  The Tribunal accepts that it is possible that an applicant may seek a change in plans or to further their skills for employment reasons and remuneration opportunities, but the Tribunal is puzzled when an applicant arrives on a visitor visa and then makes sudden changes to their plans within a short period of time after arriving.  It seems unlikely to the Tribunal that a person travelling as a tourist would make such a significant change from their initial intentions to visit.  Such a significant change would necessarily include a greater level of planning and preparation before arriving in Australia considering the length of time (three years) that the applicant proposed to spend in Australia.  It raises concerns about his true intentions in seeking a student visa. 

23. The applicant’s response to the s359(2) letter states he has otherwise had no travel, visa or immigration issues in the past.

24. The applicant states he does not have any potential military service obligations or political or civil unrest concerns in India.[22]

    [22] See applicant’s response to the s359(2) letter.

25. The Tribunal considers the factors for and against the applicant being a genuine applicant for entry and stay as a student temporarily are finely balanced in this case.  On balance, the Tribunal has determined to give the benefit of the doubt to the applicant.  In this regard, the Tribunal notes that the applicant is due to finish his Diploma of BC in May 2021 which means he is a matter of five months from completion.  Should the applicant instead make a further application for a student visa after this time, the evidence and submissions he made to the contrary in connection with this case will clearly be relevant to any assessment of his true intentions.

26. Having had regard to the applicant’s circumstances, his immigration history and all other relevant matters, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

27. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

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

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

    Member

    T. Quinn

    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.