Singh (Migration)

Singh (Migration) [2020] AATA 5689 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sagar Singh
CASE NUMBER:  1933326
HOME AFFAIRS REFERENCE(S):          BCC2019/4562395
MEMBER:Stephen Witts
DATE:28 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 28 September 2020 at 12:19pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– vague details about future plans – genuine temporary entrant criterion not met– personal ties with Australia–– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cl 500.21
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 September 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.
The applicant appeared before the Tribunal on 24 September 2020 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.
Genuine applicant for entry and stay as a student (cl.500.212)
Clause 500.212 requires as follows:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant intend genuinely to stay in Australia temporarily?
In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.
According to the delegate’s decision record provided to the Tribunal by the applicant dated 13 November 2019, the applicant applied for a student visa which was refused on the basis that the delegate did not believe that the applicant was a genuine temporary entrant and that he was using the student visa program to maintain residence in Australia.
The Tribunal has considered all the material before it and evidence taken at hearing. Regarding material before it the Tribunal in particular has considered the applicant’s response to a request for student visa information under s.359(2) of the Act. In this material the applicant stated that he completed his secondary high school education back in his home country of India in 2016. He then studied for a Diploma of Electrical Engineering which he stated was completed in 2014 and a Bachelor of Technology which he started in 2015 but was not completed.
He stated that he first arrived in June 2019 on a visitor visa. He stated that he is currently enrolled in a Bachelor of Business which began in June 2019 and he says it is due for completion in July 2022. In regard to his study he stated that “I am having many options for continuing my studies in India but Australia is far better than India and practical learnings that’s why I have finalised Australia as my study destination. Moreover, I have observed the difference in Indian education and Australian education. Australia have impressed me with a high standard of living, variety of globally recognised courses and degrees offered, impressive use of new technology and innovations, institutions deliver practical and career orientated trainings, multicultural and friendly society etc”.
He stated that his monthly expenses here in Australia AU$950. The applicant stated that he has a mother and a father back in his home country of India that he last saw in 2019 and also has a sister in Australia that he is living with and that he was in regular contact with his family and that they talk on a daily basis. He stated that after successful completion of his studies he wants to go back to India and work as a professional in industry.
The applicant stated that there were no political, civil, or military commitment issues stopping him going back to his home country.
The Tribunal has also considered a submission dated 17 September 2020 from the applicant’s representative stating that the applicant comes from a wealthy family in India and has completed his secondary education and has a Diploma of Electrical Engineering. He stated that he was enrolled in a Bachelor of Technology back in his home country but did not complete this degree. He stated that his elder sister is living in Australia and that he applied for a visitor visa to come and visit her. He stated that he learnt that the Australian education system was excellent and that he is now studying well. He stated that his Bachelor of Business enrolment will assist him to start a successful business career. He stated that the applicant wishes to make a career in a technical field and/or company. He stated that the applicant has ties to his home country via family and financial interests.
At hearing, the Tribunal had a discussion with the applicant regarding the circumstances of his arrival here on a visitor visa and his decision to undertake study whilst here and the reason for not undertaking such study if he wished back in his home country.
The applicant stated that he decided to come here and visit his sister after he was unable to finish his bachelor level course because, he said, he had problems with the education system there and that he was very stressed, and that his sister invited him to come over. When asked why he decided to study in Australia he stated that the education system is good here and the study is more practical and that the education system and the living standards here in Australia are much higher. In particular he said the technology is more advanced and that study is more global and that his course is going okay.
The Tribunal has considered this carefully and is concerned about the applicant’s stated intention as to the reasons why he really decided to come to Australia. The Tribunal has considered this carefully in the context of the applicant’s visa and immigration history here with him coming to this country on a short-term visitor visa and then deciding to stay for a number of years. The Tribunal did discuss this with the applicant and is concerned that the applicant could not provide a coherent narrative as to his real reason for coming here to Australia. The Tribunal did not accept the applicant’s evidence as credible that he genuinely came here as a visitor for a short period of time and then just decided to stay and study. The Tribunal finds that the applicant was most likely coming here in the first place to Australia not as a genuine visitor but as somebody who wished to use the visa system to its best advantage to ensure that he remained here as long as possible and not as a genuine temporary entrant. The Tribunal finds that it is most likely that the applicant had already decided that he wanted to come here and live with his sister, perhaps permanently, and sought to begin this process by arriving in Australia on a short-term visa and then convert that to a longer term visa. The Tribunal finds this lends weight to the contention that the applicant is using the student visa program to maintain residence in Australia.
As stated above the Tribunal had a discussion with the applicant about his intentions in his current enrolment and their value for his proposed future and notes that the applicant is still enrolled and that he says that this business enrolment will assist him in the future. The Tribunal has considered this in the context of the applicant already having electrical engineering qualifications albeit at diploma level and found the applicant’s evidence about the reasons why he wished to remain studying in Australia because the education system is good as not credible. The applicant acknowledged that there were courses back in his home country of a similar if not the same type that he could be studying and did not give evidence that the Tribunal found credible that he is genuinely seeking to prolong his stay here because of the quality of this particular business course. After careful consideration the Tribunal finds that the applicant has not provided reasonable reasons for not undertaking this study in his home country or region or a third country as similar courses are already available there. The Tribunal notes that the applicant is currently enrolled in a higher level bachelor course but also notes that the applicant has previous education in electrical engineering and so the Tribunal is not convinced that the applicant is undertaking a course in this case that is consistent with his current level of education and more particularly whether the course will assist the applicant to obtain employment or improve employment prospects in his home country or region. The Tribunal doubts the relevance of this enrolment to the applicant’s past or proposed future employment either in his home country or a third country and also doubts that it will assist the remuneration that the applicant could expect to receive in his home country or a third country. The Tribunal finds this lends weight to the contention that the applicant is not a genuine temporary entrant and is using the student visa program to maintain residence in Australia.
In regard to the applicant’s personal ties to his home country and his ties with Australia the Tribunal has given this matter careful consideration and finds that the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia. The applicant is currently here with his sister who is a permanent resident and states that he remains in regular contact with the rest of his family and did not indicate that he was having any troubles maintaining his family relationships from here in Australia. The Tribunal finds that this lends weight to the contention that the applicant is using the student visa program to circumvent the migration program.
In regard to the economic circumstances of the applicant the Tribunal notes that the applicant has stated that his family are paying for him here in Australia and are assisting him to maintain himself here financially and on that basis the Tribunal finds that the economic circumstances of the applicant would present as a significant incentive for the applicant to remain here in Australia and not to return to his home country.
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Stephen Witts
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.

[2020] AATA 5689

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction