Singh (Migration)

[2020] AATA 5239

Singh (Migration) [2020] AATA 5239 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashwin Singh

CASE NUMBER:  1922308

HOME AFFAIRS REFERENCE(S):          BCC2019/2689830

MEMBER:Vanessa Plain

DATE:3 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.212 of Schedule 2 to the Regulations

Statement made on 03 December 2020 at 9:30am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa and study history – enrolment in lower-level course – major surgery and risk of infection during COVID-19 pandemic – original intention to return home – enrolled in further course while waiting for pandemic to subside – plans to join family business in home country – no significant ties to Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 July 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 May 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 14 September 2020 to give evidence and present arguments.  

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

6. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsdideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student.

8. 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?

9. 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.

10. 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.

    Documentary evidence in support of application

11. The applicant submitted the following documents in support of his application, as follows:

    ·    COE for an Advanced Diploma of Business   

    ·    A Response to Request for Student Visa Information (s.359(2) of the Act) (Response)

    ·    A GTE Statement 

    ·    A suite of academic documents evidencing grade attainment and course completion

    ·    Letter (addressed to the delegate’s concerns)

    ·    Business certificate (for the applicant’s father’s business in India)

    ·    Indian tax return

    ·    A suite of medical documents pertaining to a serious medical condition that applicant suffered between 2011 and 2013 approximately

    ·    Submissions dated 10 September 2020

    ·    A medical report dated 11 September 2020

12. The Tribunal has considered these documents, the material before the delegate, the decision record and the applicant’s oral evidence at hearing. 

    Entry and Visa History

13. The applicant in this case is an Indian man who first arrived in Australia on 15 January 2009 utilising an initial Student (Class TU) (Subclass 573) visa.  Thereafter the applicant was granted a medical visa between February 2011 and February 2013 and thereafter he was granted a Temporary Skilled Graduate (VC 485) visa and associated bridging visas. 

14. The student visa application the subject of this hearing was lodged on 25 May 2019 and will be the applicant’s second student visa application.           

    Current Status

15. The applicant is currently enrolled in an Advanced Diploma of Business which is scheduled to conclude in October 2021.     

    Previous Study and Work History before entering Australia

16. The applicant completed high school in his home country and did not disclose a working history prior to entry into Australia. 

    Study History in Australia

17. Since arriving in Australia, the applicant has been enrolled in the following courses:

    ·A Bachelor of Computer and Network Engineering which he completed;

    ·An Associate Degree in Engineering Technology which he completed;

    ·A Diploma of Business which he completed;

    ·An Advanced Diploma of Business which he is studying now and which is scheduled to conclude in October 2021.  

18. The circumstances of this case are somewhat unique.  The applicant has been onshore since 2009 and has successfully completed three courses which he has undertaken to date.  He is well on his way to completing a fourth and final course, being an Advanced Diploma of Business.  This course is an academic regression from the Bachelor level studies the applicant has already successfully completed.  However, the Tribunal is satisfied that there are exceptional medical circumstances in this case that weigh heavily in favour of permitting the applicant to spend a further 10 months in Australia for the purpose of enabling him to finish his Advanced Diploma.

19. It is clear that the applicant was granted a medical visa in 2011 as a result of a major car accident that resulted in the applicant requiring extensive surgery and approximately 2 years of rehabilitation.  As a result of the surgery, the applicant is splenectomised. 

20. The Tribunal has had regard to and places significant weight upon the opinion of Dr Veronika Kirchner.  Dr Kircher has provided a report dated 11 September 2020 and in that report the doctor expresses a view that if the applicant travels presently, due to his medical condition, this would pose a serious risk to his health and his life, as patients who are splenectomised are at major risk or viral and/or bacterial infection, which is heightened by the COVID-19 pandemic. 

21. In the applicant’s GTE statement, the applicant has stated that he wishes to finish his Advanced Diploma after which time he expects to be able to travel back to his home country and join his father in the family business, but he wishes to do so when to travel would not pose a risk to his life on account of his medical condition.  He stated further, candidly, that it was his intention to return home after completing his Diploma of Business, but due to the pandemic and his doctor’s advice, he considered that he ought to obtain a higher level of practical business knowledge by undertaking an Advanced Diploma, while waiting for the pandemic to subside.

22. The Tribunal notes that the applicant is an exemplary student and has an impressive academic record.  The documents he produced clearly indicate that is from a family of some means in India and he will join his father in the family business upon return home.  He clearly researched the availability of a Diploma of Business in Australia before applying for the visa and he has already successfully completed that course. 

23. The Tribunal is satisfied based upon the contents of the documents referred to above, that the applicant has reasonable ties to his home country, a satisfactory immigration records in Australia and no significant personal ties to the Australian community that may incentivise him to stay in Australia on a more permanent basis.

24. The Tribunal is satisfied that there are exceptional and compelling circumstances in this case, on the basis of the applicant’s unique medical condition and Dr Kirchner’s opinion dated 11 September 2020, which outweigh all other factors set out in Direction 69. 

25. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  The Tribunal in this case accepts that the applicant is s genuine temporary entrant, notwithstanding that he has been in Australia since 2009, there are exceptional and compelling medical reasons that speak to the reason why the applicant has been onshore for that length of period and those circumstances do not negate the fact that the applicant is a genuine student and temporary entrant in the Tribunal’s view.   

26. The applicant has provided information to the Tribunal demonstrating that he has successfully completed various courses to date and that he has suffered from and continues to suffer from a serious medical condition that is a threat to his life if he travels in the current COVID-19 pandemic climate. Considering all the circumstances and all the evidence before the Tribunal, the Tribunal accepts the applicant’s claims to be those of a genuine temporary entrant.

27. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

28. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

29. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

    DECISION

30. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    ·cl.500.212 of Schedule 2 to the Regulations

    Vanessa Plain
    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.