Singh (Migration)

[2020] AATA 3789

Singh (Migration) [2020] AATA 3789 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanbeer Singh

CASE NUMBER:  1927081

HOME AFFAIRS REFERENCE(S):          BCC2019/4101862

MEMBER:Stephen Witts

DATE:8 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 08 September 2020 at 2:10pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – application for student visa made after arriving as tourist – equivalent education available in home country – no reasons for undertaking education in Australia provided to department – incentives to remain or return – parents in home country and two siblings in Australia, one a permanent resident – decision under review affirmed

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 September 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 19 August 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 delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4.    The applicant appeared before the Tribunal by telephone on 8 September 2020 to give evidence and present arguments.

5.    The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

7.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)

9. 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?

1. 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.

2. 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.

3. According to the delegate’s decision record provided to the Tribunal by the applicant dated 24 September 2019, the delegate refused the applicant’s application for a student visa on the basis that the applicant was not a genuine temporary entrant. According to the delegate the applicant is unmarried with no dependent family members and his most recent education was a year 10 secondary certificate completed in 2019. According to the delegate the applicant was proposing to undertake secondary years 10 to 12 from July 2019 until December 2020. According to the delegate the applicant has not provided any evidence to demonstrate or elaborate upon their reasons for undertaking this proposed education here in Australia and that the delegate had serious concerns in regard to the motive and intention for choosing to study in Australia. According to the delegate it was particularly concerned that the applicant first arrived for the purpose of tourism on 6 June 2019 after having been previously granted a visitor subclass 600 visa in May 2019 which ceased in September 2019. It was noted by the delegate that the applicant at that time was under 18 years of age.

4. The Tribunal has considered all the material available to it provided by the applicant and to evidence given at hearing. In particular the Tribunal has considered material provided by the applicant in accordance with a request for Student Visa Information under s. 359(2) of the Migration Act. In this material the applicant has stated that he wishes to study secondary school in Australia as it will give him an opportunity to “explore myself and even if I had studied in India I will never be able to use my knowledge to give to country or two would have put to better use of my knowledge because in India once we have finished our study it is very harder to find professional work for any fresher. Moreover, Australia is best suitable for me as it fulfils all the required conditions as per my needs. Australia is a leading globally recognised country which provides quality education. The Australian approach to education is recognised as among the best and most innovative in the world.”

5. The applicant also provided evidence that his mother and father are back in his home country of India but that his brother and sister are here in Australia. He explained that he came to Australia with his mother but that she went back to India in July 2019 and that he had been living with his elder brother who is his guardian and that he remains in regular contact with his parents via phone and video calls. He stated that after he finishes his high school level education, he is planning to continue further studies back home in his home country as his parents are there and are growing old. He also stated that his parents have assets in India worth approximately AU$400,000. He also stated that he wishes to get qualifications in management and work in sales and marketing.

6. The Tribunal has also considered a submission by the applicant’s representative stating that the applicant has now provided a statement of purpose, which the Tribunal has also considered, stating that he is a genuine temporary entrant and that although he first came here as a tourist to see his siblings whilst here he decided that he wanted to study because of Australia’s cultural diversity and quality of education. He stated that the applicant will be finishing his course of education in December 2020.

7. The Tribunal has also considered material provided prior to the hearing including another submission by the applicant’s representative undated but received by the Tribunal on 3 September 2020 where the applicant’s representative stated that a refusal to remit this matter will have a significant impact on the applicant’s academic progress as it will hamper the consistency in his study and will create a gap in his study. He also stated that the applicant has only partially completed his studies this year being four months away from completing year 12 and if he was forced to return home he would not get credit for the study he has done here and would have to wait until April next year to enrol himself in year 12 and so this will cost him an extra few months study. He also stated the applicant has spent a significant amount of money on his education here in Australia and that he hasn’t been able to perform up to his potential without a substantive visa and that this was reflected in how the education provider has perceived his study here. He further stated that the applicant is eligible to apply for a student visa and so did so. He stated enrolling in years 11 and 12 after having completed year 10 shouldn’t be considered a significant change of mind by the applicant. The applicant did not indicate that he had any political, military or economic reasons why he couldn’t return to his home country.

8. At hearing, the Tribunal had a discussion with the applicant  as to why he first came here on a visitor visa and then sought to convert that to a more longer lasting student visa and why he did not continue to study his high school level education back in his home country. The applicant stated that he arrived here as a tourist and then surfed the Internet and decided to explore studying here and that the education system is better here. He stated that his agent and his parents told him he should study here and that he does intend to return home. The Tribunal also had a discussion with the applicant regarding the fact that his two siblings are here in Australia, one as a permanent resident and one as a temporary resident, and that for a period of time he has lived with his brother here who was his guardian. The Tribunal has carefully considered this evidence and is concerned that the applicant first arrived here as a visitor and then decided to remain here as a student. The Tribunal did not find the applicant’s evidence credible regarding his statements of arriving here as a tourist and then changing his mind and deciding to stay here and study his high school level education. The applicant also did not give a coherent narrative as to why he couldn’t have completed his high school level education back in his home country. The Tribunal finds that the applicant’s visa history here in Australia lends weight to the contention that the applicant is using the student visa system to circumvent the migration program and that he does not intend to reside here in Australia temporarily despite his statement that he wishes to return home.

9. The Tribunal has also considered the applicant’s circumstances here in Australia and his personal ties to his home country and is concerned that the applicant is here in Australia with his two siblings and that for a period of time been he has been living with his brother here in Melbourne. He stated that his brother was in Sydney for a while working as a chef and that he was living here by himself but that at some point his brother may return. The Tribunal finds that the applicant’s personal ties to his home country do not serve as an incentive to the applicant to return to his home country. The applicant has his siblings here in Australia both of whom are residents of this country. The Tribunal finds that this lends weight to the contention that the applicant is seeking to use the student visa program to circumvent migration program. The Tribunal has also considered the evidence provided by the applicant that he has his parents back in his home country and  that he wishes to return but finds that this is outweighed by his desire to be here with his siblings and that this also lends weight to the contention that the applicant is seeking to use the student visa program to maintain residence in Australia.

10. The Tribunal notes that the applicant did not provide any evidence that there were military service commitments or political and civil unrest in the applicant’s home country that would stop him returning to his home country.

11. The Tribunal has also considered the applicant’s evidence for undertaking his high school level education here in Australia and is concerned again that the applicant did not provide credible evidence as to why he is actually studying here in Australia other than it may assist his English and that schools are good here. The Tribunal acknowledges that this may be the case however the applicant could have  applied for and been granted a student  visa and come here on that student  visa to study at some point rather than come here as a tourist, and finds after careful consideration that the applicant has not provided reasonable reasons for not undertaking his study in his home country or region as he could have completed his high school level education in his home country in his family situation should he have desired. The Tribunal finds the applicant has not presented adequate reasoning for his move here to Australia on a visitor visa to receive an education and in fact just wanted to be here with his siblings. The Tribunal finds that the applicant’s ties with Australia would present as a strong incentive for the applicant to remain in Australia, and this includes both family and also community ties that have been referred to in evidence provided.

12. 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.

13. 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

1. 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).

1. 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.

2. 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.

3. 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

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. 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

1. 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.

2. 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

1. 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

1. 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

1. An applicant’s immigration history refers both to their visa and travel history.

2. 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

1. 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

1. 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.