Singh (Migration)

[2020] AATA 5434

Singh (Migration) [2020] AATA 5434 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh

CASE NUMBER:  1931538

HOME AFFAIRS REFERENCE(S):          BCC2019/4545571

MEMBER:Peter Booth

DATE:30 October 2020

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:

· cl.500.212 of Schedule 2 to the Regulations.

Statement made on 30 October 2020 at 8:33am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – applicant owns agricultural land in India – future remuneration – plans to establish a business – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cls 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 28 October 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 11 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

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) because the applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 26 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

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

   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 temporary entrant.

   Genuine applicant for entry and stay as a student (cl.500.212)

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.

11. The applicant gave evidence at the hearing, the substance of which was as follows. The applicant had read the delegate’s decision dated 28 October 2019 refusing his application for a student visa. The applicant understood and knew that the issue for determination was whether he was a genuine temporary entrant.

12. The applicant said that he is currently enrolled in a graduate certificate of management (learning), which commenced on 27 January 2020 and is scheduled to be completed on 24 January 2021, and thereafter in a graduate diploma of strategic leadership, which is scheduled to commence on 22 February 2021 and be completed on 20 February 2022. The applicant had produced confirmation of enrolment documents to the Tribunal in that regard.

13. The applicant had also provided information to the Tribunal in the form of a response to a request to do so pursuant to s.359(2). In summary, the information provided by the applicant was as follows. The applicant completed a bachelor of science degree in July 2014 and a bachelor of education degree in September 2015, prior to arriving in Australia. Prior to arriving in Australia, the applicant was employed as a teacher between November 2015 and July 2019.

14. The applicant arrived in Australia on 24 July 2019 and since that time has not returned to his home country.

15. The applicant arrived in Australia as the holder of a “visitor visa” and applied for the student visa in question on 11 September 2019.

16. The applicant enrolled in a diploma of leadership and management, which commenced on 28 October 2019, but did not complete it; he was enrolled in an advanced diploma of leadership and management but did not commence it; he commenced studying a graduate certificate in management on 27 January 2020, and has a “future enrolment” in a graduate diploma of strategic leadership due to commence on 22 February 2021.

17. The applicant did not disclose any employment history in Australia.

18. The applicant stated that his father and mother reside in India and that his sister resides in Australia.

19. As to assets in India, he said, “I have financial ties up to India. I have a bank account which is active”. Subsequently he stated that he owned agricultural land in India.

20. As to his future employment plans, he stated, “I will be team leader in my teaching department once I complete the study I will be able to leave my department I will have a lot more manager level jobs opportunities”.

21. As to his future remuneration, he stated: “it will be start from 100000 Rs and it will be increase with my experience”.

22. The Tribunal proceeded to ask the applicant some questions arising from the responses paraphrased above. The questions and the answers, in summary were as follows.

23. The applicant confirmed that he arrived in Australia on 24 July 2019 as a tourist. In answer to a question from the Tribunal, he said that he intended to stay for “one month or 45 days, meet my family, do some sightseeing and return to my country”. He confirmed that the tourist visa was valid for the purposes of that entry until approximately 24 October 2019.

24. The applicant confirmed that he applied for the student visa in question on 11 September 2019. When asked when he applied to be enrolled in courses of study, he said, “applied a few days before that, leadership and management, almost one week before that”. He did not elaborate.

25. The applicant confirmed that he did not complete the diploma of leadership and management course. When asked when he ceased that study, he said, “approximately one month after”. When the question was repeated, he said “approximately 26 November 2019”. When asked whether he was excluded from the course or abandoned the study, he said, “I will not say I abandoned it, but I updated the course”. When the question was repeated, he said, “not like that I am learning new things, I came to know about graduate certificate course, the fees were a bit higher, but I was able to afford that fee”. The Tribunal put to the applicant that he had abandoned the diploma of leadership and management course, to which he responded, “I updated, I will not say I abandoned it”. The Tribunal put to the applicant that he was being evasive and invited his comment. He replied, “it was my own decision that I changed”.

26. When asked as to his employment history in Australia, he said, “I haven’t done any work here”. When asked how he was supporting himself financially, he said, “I have a sister, she meets my expenses, the parents will pay her back”.

27. When asked as to his assets in India, he said, “my own land, about 40,466 m², I have attached documents relating to that”. In response to a question from the Tribunal, he drew the Tribunal’s attention to documents described as a “land certificate”, upon which a date stamp of 16 September 2020 appeared. That document does appear to show that the applicant is the proprietor of real property in India.

28. When asked as to his employment intentions when he returns to India, he said, “before coming to Australia, I have worked as a teacher for four years, I am a maths teacher, and I want to start my own Academy, I have attached my business plan”. When asked to expand upon the business plan, he said “report from CA”. He did not elaborate. When invited to expand, he said, “that is business plan, when I finish I can go back and start business, business plan is to expand loose Academy at a large scale, things I will learn here I am able to establish my business plan, I have my own land, I can open on my own land, the funds will not be a problem”. When asked how much he estimates he would require in order to commence this venture, he said, “about $60,000 or $70,000”. The Tribunal asked whether he would construct a building, to which he said, “yes, the construction is quite cheap in India as compared to here”.

29. The applicant confirmed that he had worked as a maths teacher in India for four years prior to arriving in Australia and that he had completed degrees in science and in education. When asked why he needed to undertake vocational courses in management in order to operate a school, he said, “in India there is a pathway to study, but I have learned practical knowledge,”. He did not elaborate. The Tribunal asked whether he would be working as a teacher in the new business, to which he said, “no I will be managing that, I will appoint other teachers”.

30. The Tribunal asked whether the applicant had resigned his employment prior to travelling to Australia. He responded, “no, my record was good, I informed them that I’m going to study, after I finish they said if I want to join back”. Then he added, “the new that I got to see here, the way they teach the younger kids, I would like to take that back to India, and implement that in my Academy, the new thing that is KUMON that I would like to take back and implement in my Academy”.

31. The Tribunal asked the applicant whether he had resigned his appointment, to which he said “no”. He was then asked whether he had taken leave of absence from his employment and if so for how long. He replied, “for two months”. The applicant was asked when he had informed his employer that he would not return to India until approximately February 2022. He responded, “when I applied for the study, I had a conversation with the head of department over there, and I informed him about the course, he said go-ahead complete your studies, and once you finished and even if come back you can rejoin”. He added, “over there to find contract for two years with all the teachers, and I have quite a good relationship with the principal he is quite happy with this decision of study”.

32. When invited to add anything further to his evidence, the applicant said “the things that I am learning here, the experience that I have getting from here, has really worked for me, I am very happy and satisfied with what I have learned, I am only studying here, doing no work, with all my energy I am able to learn these things, that’s it”.

33. Prior to the hearing the applicant provided a variety of documents to the Tribunal. The applicant did not refer to any of these documents during the course of giving evidence at the hearing, except for the document in respect of his ownership of real property and a vague reference to a business plan. Nonetheless, they have been taken into account by the Tribunal to the extent relevant and given appropriate weight. The Tribunal makes a number of observations in relation to those documents. First, it appears that the applicant owns real property in India. Secondly, an Indian accountant has prepared a business plan, which although lacking in detail as to the type of business which would be undertaken, does set out the financial requirements and other related matters.

34. The applicant’s representative was invited to make submissions to the Tribunal. In summary, those brief submissions were broadly consistent with the applicant’s evidence. The representative also filed written submissions. These submissions are undated, and without page numbers or paragraph numbers. The submissions are broadly consistent with the applicant’s evidence. They were not referred to by the representative. Nonetheless, they have been taken into account by the Tribunal and given appropriate weight.

35. The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand, the applicant has been in Australia for a relatively short period of time. He arrived in Australia as a tourist, but within a short space of time decided to embark on a course of study in Australia, which would require him to reside here for several years. Although the applicant is entitled to apply for a student visa whilst onshore and as the holder of a tourist visa, the circumstances of the application for a student visa are relevant to considering whether the applicant is a genuine temporary entrant. He commenced a diploma of leadership and management but abandoned it within approximately one month. He was evasive as to whether he abandoned the course or was excluded from it. His reasons for being evasive are not apparent. Nonetheless, the evasiveness of an applicant in the hearing is a matter to be taken into account. He has degrees in science and in education and has worked as a teacher for four years in India. He has enrolled in vocational courses in leadership and management. He was somewhat vague as to the utility of those courses to his future career path. However, in the applicant’s favour, he has maintained enrolment in the first vocational course in leadership. The vocational courses in leadership appear to have some relevance to his intended career path, namely, to open a school of some type. He owns real property in India, upon which he intends to construct and operate the school. His immediate family, with the exception of his sister, reside in India. Further, the applicant considers that he will complete his course of study within a short period of time. On balance, and not without significant misgivings, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant.

36. 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).

37. 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.

38. 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

39. 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:

    ·cl.500.212 of Schedule 2 to the Regulations.

    Peter Booth
    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.