Singh (Migration)
[2020] AATA 2078
•30 June 2020
Singh (Migration) [2020] AATA 2078 (30 June 2020)
DECISION RECORD
| DIVISION: | Migration & Refugee Division | |
| APPLICANT: | Mr Gurinder Pal Singh | |
| CASE NUMBER: | 1837547 | |
| HOME AFFAIRS REFERENCE: | BCC2015/1021513 | |
| MEMBER: | Dr Jason Harkess | |
| DATE: | 30 June 2020 | |
| PLACE OF DECISION: | Melbourne | |
| DECISION: | The Tribunal affirms the decision not to grant the Applicant a student visa | |
Statement made on 30 June 2020 at 5:20pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Federal Circuit Court remittal –genuine temporary entrant criterion not met – enrolment criterion – application of Direction No. 53 – principles in Kumar conflict with ruling of Judge Riley– Tribunal to give Kumar precedence– reside in Australia continuously for the last decade– economic circumstances– changed his career plans frequently– series of short, inexpensive courses– maintain ongoing residence– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 360, 368, 499
Migration Regulations 1994, Schedule 2, cls 572.222, 572.223, 573.223
Education Services for Overseas Students Act 2000
CASES
Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16
Singh v Minister for Immigration [2018] FCCA 3423
STATEMENT OF DECISION AND REASONS
INTRODUCTION AND OVERVIEW
Student Visa Refusal – Application for Review
The Applicant is a citizen of India and is 30 years of age. He seeks review of a decision made by a delegate of the Minister for Immigration (‘the delegate’) refusing to grant him a student visa.
If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis.
Type of Visa
The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) visa. Such visas are able to be issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted depends upon a number of considerations, including:
(a)the type of course in relation to which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclasses 570 to 575);
(b)for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclasses 573 and 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575);
(c)whether the applicant has the support of the relevant Minister (Subclass 576); or
(d)whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
The Regulations, insofar as they pertain to student visas, have been amended since the Applicant lodged his visa application. Applications for Subclass 570 to 580 visas are now no longer able to be made because they have been replaced by Subclass 500 visas. However, for the purposes of the present review application, the Tribunal must make a determination in relation to the Applicant’s case on the basis of the Regulations that were in force at the time.
Procedural History
The Applicant applied for his visa on 2 April 2015. It was initially refused by the delegate, a decision which the Applicant then appealed to the Tribunal. Following a review of the Applicant’s case, the Tribunal affirmed the delegate’s decision. The Applicant then sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia (‘the FCCA’). The FCCA, after hearing argument, determined that the Tribunal had fallen into jurisdictional error and remitted the Applicant’s review application to the Tribunal for reconsideration. A detailed summary of the procedural history associated with the Applicant’s case is set out below.
Delegate’s Primary Decision
The delegate made a determination in relation to the Applicant’s student visa application on 8 July 2015. On the basis of courses of study that had been proposed by the Applicant the time of his application, being a Diploma of Marketing and an Advanced Diploma of Marketing, the delegate assessed the Applicant against the criteria for the grant of a Subclass 572 (Vocational Education and Training (‘VET’) Sector) visa. The delegate refused the visa on the basis that the Applicant was found not to meet the criteria contained in cl 572.223(1)(a) of Schedule 2 of the Regulations (‘the genuine temporary entrant criterion’). That clause obliged the delegate to be satisfied that the Applicant is a genuine applicant for entry and stay as a student in Australia temporarily before the visa could be granted.
The delegate’s reasons are set out in a decision record. A copy of that decision record was provided to the Applicant upon being notified that his visa application had been refused. The Applicant provided a copy of the delegate’s decision record to the Tribunal shortly after he lodged his review application.
Tribunal’s Determination of Review Application in Case Number 1509812
The Applicant lodged his review application with the Tribunal on 21 July 2015. It was assigned Case Number 1509812. The case was subsequently constituted to Member Connellan (‘the original Tribunal’). The Applicant was then invited to attend a hearing of his review application. That hearing took place on 4 May 2017.
The Applicant attended the hearing before the original Tribunal and gave evidence and presented arguments in support of his case. He produced documentary evidence that showed that he had, since his visa application had been refused by the delegate, successfully completed two courses. He had completed a Diploma of Marketing, being the first course that was originally proposed to the delegate. However, he did not proceed to undertake studies in the second originally proposed course, being the Advanced Diploma of Marketing course. Instead, the Applicant commenced studying towards a Diploma of Building and Construction (Management) course, which he completed in early April 2017.
At the hearing before the original Tribunal, which took place one month after he completed the building and construction course, the Applicant advanced his case for a student visa on the basis that he had since enrolled in a Bachelor of Business course. The Bachelor’s course, being a higher level principal course of study than the Advanced Diploma, obliged the original Tribunal to assess the Applicant’s review application against the criteria applicable to the grant of Subclass 573 (Higher Education Sector) visas. Save for the difference between course types in relation to each visa Subclass, the criteria applicable to the grant of Subclass 572 and Subclass 573 visas are identical.
At the conclusion of the hearing, the original Tribunal delivered an oral decision affirming the delegate’s decision not to grant the Applicant a student visa. The original Tribunal also gave oral reasons that explained its decision. Like the delegate, the original Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay as a student in Australia. Accordingly, the original Tribunal affirmed the delegate’s decision on the basis that the Applicant did not meet the criteria contained in cl 572.223(1)(a) or, alternatively, the equivalent criteria applicable to Subclass 573 visas found in cl 573.223(1)(a).
The original Tribunal’s reasons were subsequently reduced to writing on 24 May 2017, which were provided to the Applicant.
FCCA’s Determination of Judicial Review Application
The Applicant subsequently applied for judicial review of the original Tribunal’s decision in Case Number 1509812 to the FCCA. The Court, constituted by her Honour Judge Riley, was called upon to consider whether the original Tribunal had fallen into jurisdictional error in determining the Applicant’s case.
On 23 November 2018, after hearing argument, the FCCA ordered that the original Tribunal’s decision be set aside and that the review application be remitted to the Tribunal for reconsideration in accordance with the law. The FCCA’s reasons for setting aside the original Tribunal’s decision have been published in Singh v Minister for Immigration [2018] FCCA 3423.
The FCCA had found that the original Tribunal, in reaching its decision to affirm the delegate’s decision, had engaged in reasoning processes that disclosed a number of jurisdictional errors. All errors identified by the FCCA involve a misapplication of factors specified in Ministerial Direction No. 53, ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’ (‘Direction No. 53’).[1] There are 14 specific jurisdictional errors that were identified, which are summarised as follows:
[1] Direction No. 53 was issued by the Minister for Immigration and Citizenship under s 499 of the Act. It commenced operation on 5 November 2011. It has since been superseded by Ministerial Direction No. 69, ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’, which came into effect on 1 July 2016. For the present review application, only Direction No. 53 is applicable.
(a)The original Tribunal asked itself the wrong question by considering whether the Applicant’s ties to India provided a strong incentive for him to return. The Tribunal was legally obliged to consider whether his ties to India served as a significant incentive for him to return. The Tribunal applied a higher threshold which was not called for by Direction no. 53.[2]
[2] Singh v Minister for Immigration [2018] FCCA 3423, [33], the Court referring specifically to the text of Ministerial Direction No. 53, ‘Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications’ (‘Direction No. 53’), cl 9(b).
(b)The original Tribunal failed to consider whether there were economic circumstances of the Applicant that presented as a significant incentive for him not to return to India.[3]
[3] Singh v Minister for Immigration [2018] FCCA 3423, [42], the Court referring to Direction No. 53, cl 9(c).
(c)The original Tribunal failed to consider whether the Applicant was concerned about military service commitments that would present as a significant incentive for him not to return to India.[4]
[4] Ibid [45], referring to Direction No. 53, cl 9(d).
(d)The original Tribunal failed to consider whether there was any political and civil unrest in India and whether such circumstances may have had an influence on the Applicant’s motivations for applying for a student visa.[5]
[5] Ibid, referring to Direction No. 53, cl 9(e).
(e)The original Tribunal failed to consider the Applicant’s ties with Australia which would present as a strong incentive for him to remain in Australia.[6]
(f)The original Tribunal failed to consider the Applicant’s knowledge of his intended course of study, a Bachelor Business, and associated education provider, and the level of research that he had undertaken in relation to these matters.[7]
(g)The original Tribunal failed to consider whether the Applicant’s proposed course of study, a Bachelor of Business, was a course that was consistent with his current level of education.[8]
(h)The original Tribunal failed to consider whether the Applicant’s proposed Bachelor of Business course would assist him in obtaining employment or improve his employment prospects in India.[9]
(i)The original Tribunal failed to consider whether the Applicant’s proposed Bachelor of Business course was relevant to his proposed future employment in management in India or a third country.[10]
(j)The original Tribunal failed to consider the level of remuneration the Applicant could expect to receive in India or a third country, as compared to Australia, using the qualifications to be gained from completing the proposed Bachelor of Business course.[11]
(k)The original Tribunal failed to consider the Applicant’s immigration history in Australia, including the number of previous visa applications he had made, the number of visa applications that had been granted, and the number of visa applications that had been refused.[12]
(l)The original Tribunal failed to consider whether the Applicant had complied with the conditions of his previous Australian visas issued.[13]
(m)The original Tribunal failed to consider whether the Applicant previously held a visa that was cancelled or considered for cancellation.[14]
(n)The original Tribunal failed to consider the Applicant’s claims relating to his course progress in a Certificate III, a Diploma, and Advanced Diploma. It also failed to consider his enrolment in a Bachelor’s degree, whether the Bachelor’s degree was a short or inexpensive course, whether it was a higher level of course than previous courses he had undertaken, and whether it had allowed for reasonable changes to the Applicant’s career or study pathways.[15]
[6] Ibid [50], referring to Direction No. 53, cl 11(a).
[7] Ibid [58], referring to Direction No. 53, cl 11(e).
[8] Ibid [62]-[63], referring to Direction No. 53, cl 12(a).
[9] Ibid [64], referring to Direction No. 53, cl 12(a).
[10] Ibid [65], referring to Direction No. 53, cl 12(b).
[11] Ibid [66], referring to Direction No. 53, cl 12(c).
[12] Ibid [67]-[70], referring to Direction No. 53, cl 14(a)(i).
[13] Ibid [72] and [85], referring to Direction No. 53, cl 14(b)(i).
[14] Ibid [73], referring to Direction No. 53, cl 14(b)(ii).
[15] Ibid [83]-[90], referring to Direction No. 53, cl 12(a).
The FCCA held that the various factors in Direction No. 53 and the matters put forward by the Applicant were mandatory considerations. The Tribunal is obliged to consider the Applicant’s case against all the factors in Direction No. 53.[16] The original Tribunal’s failure to do so led to it falling into error.
[16] Ibid [35].
Approach Adopted by Newly Constituted Tribunal
The primary decision of the delegate now comes before the Tribunal to be reviewed again, in circumstances where a court has set aside the original Tribunal’s determination and remitted the matter for reconsideration. The newly constituted Tribunal notes that its essential function remains largely unaffected by the fact that the review application has been considered by the original Tribunal on an earlier occasion. The ultimate issues for determination by the Tribunal following a further hearing of the review application remain the same. They are:
(a)whether the Applicant meets the enrolment criterion; and
(b)whether the Applicant meets the genuine temporary entrant criterion.
However, there are some additional considerations that necessarily arise. In this case, the responsibilities of the newly constituted Tribunal (‘the Tribunal’), as compared to those of the original Tribunal, may be summarised as follows:
(a)The Tribunal is obliged to invite the Applicant to give evidence and present arguments at a hearing on specific issues in relation to the decision under review as if it were the original Tribunal.[17] This effectively entitles the Applicant to a further hearing.
(b)The Tribunal is constituted by an independent Member who is not the same Member who constituted the original Tribunal. As such, the Tribunal is obliged to identify and assess the issues that arise for consideration irrespective of how the original Tribunal came to a determination of the review application. This may result in the Tribunal making different findings and reaching different conclusions as to whether the Applicant meets the criteria for the grant of a student visa. Whatever the final outcome, the Tribunal will engage in reasoning processes that are different to those of the original Tribunal.
(c)It is appropriate for the Tribunal to approach the Applicant’s case afresh. The 14 jurisdictional errors identified by the FCCA in the original Tribunal’s decision all relate to the genuine temporary entrant criterion. This suggests that the critical issue of whether the Applicant is a genuine temporary entrant was not effectively determined. Rather than specifically address each error one-by-one, the Tribunal will instead ‘start over’ in its assessment of this criterion. The Tribunal is aware of the need to consider each of the Direction No. 53 factors, insofar as they are relevant, with the requisite degree of precision and deliberation that the law requires.
(d)The Tribunal is also aware that, since the FCCA set aside the original Tribunal’s decision in this review application, the Full Court of the Federal Court of Australia in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16 has had occasion to review her Honour Judge Riley’s approach to the application of Direction No. 53 in this case. While the Court in Kumar did not overrule Judge Riley’s approach, it made its own pronouncements as to how Direction No. 53 is to be correctly applied in any given case before the Tribunal. The relevant principles in Kumar are referred to in paragraph [43] of the Tribunal’s reasons below. Insofar as the relevant principles in Kumar conflict with the ruling of Judge Riley in this case, the Tribunal is bound to give Kumar precedence.
(e)The primary criteria for the grant of a student visa must be met by the Applicant at the time the Tribunal makes a decision following its reconsideration of the review application.[18] The original Tribunal heard and determined the review application on 4 May 2017. The information that was before the original Tribunal is no longer current. The Tribunal must be presented with more recent information relating to a proposed course of study in relation to which the Applicant is currently enrolled, or is subject to an offer of enrolment, in accordance with cl 572.222(1) or cl 573.222(1) of Schedule 2 of the Regulations (‘the enrolment criterion’). The Tribunal must also be presented with more recent information pertaining to the Applicant’s activities since 4 May 2017, which will be relevant to the question of whether he presently meets the genuine temporary entrant criterion. The need to consider the latest information is another reason for the Tribunal approaching the case afresh.
(f)Material that was before the original Tribunal may remain relevant for the purposes of the Tribunal coming to reconsider the merits of the Applicant’s case. The Tribunal should therefore review such material to identify evidence and arguments that remain germane to the review application now being reconsidered.
(g)Ultimately, the Tribunal should ensure that Applicant is afforded a reasonable opportunity at the further hearing to give further evidence and present arguments that he wishes to make to advance his case for a student visa.[19]
[17] Migration Act 1958 (Cth), s 360(1); NBKB v Minister for Immigration and Citizenship [2009] FCA 69, [28].
[18] Migration Regulations 1994 (Cth), Sch 2, cls 573.22, 573.222(1).
[19] NBKB v Minister for Immigration and Citizenship [2009] FCA 69, [31].
Hearing of Application
Pursuant to s 360 of the Act, on 12 September 2019 the Tribunal wrote to the Applicant inviting him to attend a further hearing of his case. The Tribunal’s letter informed the Applicant that the hearing was to take place on 28 October 2019, and that the Tribunal would be considering whether he meets the enrolment and genuine temporary entrant criteria for the grant of a student visa.
The hearing took place on 28 October 2019 as scheduled. The Applicant appeared before the Tribunal in person to give evidence and present arguments.
Prior to the hearing, the Tribunal received the following documents filed by the Applicant in support of his case:
(a)certificate dated March 2006, issued by Punjab School Education Board, indicating that in March 2006 the Applicant passed the Matriculation Examination (India);
(b)certificate dated March 2008, issued by Punjab School Education Board, indicating that in March 2008 the Applicant passed the Secondary (12th Class) Examination (India);
(c)certificate dated 14 July 2009, issued by Nova Institute of Technology, indicating that the Applicant successfully completed a 10-week General English course from 3 June 2009 to 8 July 2009;
(d)certificate dated 11 September 2015 and related letter and academic record, issued by Della International College Pty Ltd, indicating that the Applicant successfully completed a Certificate III in Food Processing (Retail Baking) – Cake and Pastry course over the period 1 July 2009 to 11 June 2010;
(e)certificate dated 17 July 2015 and related letter and academic record, issued by Della International College Pty Ltd, indicating that the Applicant successfully completed a Diploma of Management course over the period 15 June 2010 to 13 May 2011;
(f)certificate dated 17 July 2015 and related letter and academic record, issued by Della International College Pty Ltd, indicating that the Applicant successfully completed an Advanced Diploma of Management course over the period 13 June 2011 to 1 June 2012;
(g)certificate dated 13 January 2014 and related letter and academic record, issued by Della International College Pty Ltd, indicating that the Applicant successfully completed a Certificate III in Painting & Decorating course over the period 19 November 2012 to 5 January 2014;
(h)certificate dated 15 October 2015 and related letter and academic record, issued by Sunshine College of Management Pty Ltd, indicating that the Applicant successfully completed a Diploma of Business course over the period 17 February 2014 to 8 February 2015;
(i)certificate dated 20 April 2017 and related academic records, issued by Della International College Pty Ltd, indicating that the Applicant successfully completed a Diploma of Marketing course over the period 30 March 2015 to 17 April 2016;
(j)certificate dated 24 April 2017 and related letter and academic record, issued by Della International College Pty Ltd, indicating that the Applicant successfully completed a Diploma of Building and Construction (Management) course over the period 4 July 2016 to 2 April 2017;
(k)Confirmation of Enrolment document (‘CoE’) bearing reference code B046F464 indicating that on 18 October 2019 the Applicant enrolled in a Graduate Certificate in Management (Learning) course at Lennox Institute Pty Ltd with a course start date of 28 October 2019 and end date of 25 October 2020;
(l)Private Health Insurance Policy for Overseas Student Health Cover dated 18 October 2019 indicating that the Applicant had paid for such insurance on that date, in the amount of $616, for a 14-month period of cover from 29 October 2019 to 29 December 2020;
(m)undated letter, type-written by the Applicant and headed ‘Explanation of Gap’, in which the Applicant seeks to explain why he has not studied in Australia since 2017 and up to October 2019;
(n)undated letter, type-written by the Applicant and headed ‘Statement of Purpose’, in which the Applicant seeks to explain his background and why he currently seeks a student visa to study for a Graduate Certificate in Management;
(o)copy of Applicant’s passport and pages showing travel history.
The Tribunal has considered each of these documents insofar as its contents contain information relevant to the outcome of the present review application.
Tribunal’s Determination
For the following reasons, the Tribunal has determined that the delegate’s decision refusing to grant the Applicant a student visa ought to be affirmed. The Tribunal’s reasons incorporate reference to the oral evidence given at the hearing, the documentary evidence and other information that the Tribunal has been found to be material to the determination of the issues in the case.[20]
[20] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material to the Tribunal’s ultimate determination. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [88]-[95]; Shoukat v Minister for Home Affairs [2020] FCA 194, [25] (O’Callaghan J); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
In preparing its reasons, the Tribunal has been conscious of the particularity with which the FCCA identified the jurisdictional errors in the original Tribunal’s decision. The Tribunal has also considered the effect that the subsequent decision in Kumar now has on the Tribunal’s general obligation to refer to and make findings in relation to each factor in Direction No. 53. In short, the Court in Kumar made it clear that the Tribunal is under no legal obligation in its reasons to refer to, or to make formal findings in relation to, those factors it has found to be immaterial in reaching its ultimate decision.[21]
[21] See the Tribunal’s reasons below, at [43].
In the present case, the Tribunal has considered the application all the factors referred to in Direction No. 53 and, in particular, those that are the subject of the 14 jurisdictional errors in the original Tribunal’s decision that were identified by the FCCA. The Tribunal has found several of those factors not to be material in its determination now. According to Kumar, the Tribunal is therefore not obliged to refer to these factors in its reasons. Nevertheless, out of an abundance of caution, the Tribunal has incorporated reference to all Direction No. 53 factors that are relevant, including those found to be immaterial, to ensure the FCCA’s orders are adhered to. For the avoidance of doubt, by considering a matter not to be ‘material’, the Tribunal has made the qualitative assessment that, having regard to all other relevant considerations in this case, the matter is relatively insignificant – consideration of it has not resulted in a different outcome when regard is had to the materially significant considerations.
ENROLMENT CRITERION
The CoE bearing reference code B046F464, relating to the Applicant’s enrolment in a Graduate Certificate in Management course at Lennox Institute Pty Ltd, appears to represent a valid and current enrolment. The Graduate Certificate course, being a Higher Education Sector course, obliges the Tribunal to assess the Applicant’s review application against the criteria applicable to the grant of Subclass 573 visas.
The Tribunal notes that, at the time of making its decision, it has been more than six months since the Applicant gave evidence in relation to this proposed course. In fairness to the Applicant, the Tribunal assumes that he remains enrolled, is making satisfactory progress, and is due to complete the course on 25 October 2020 as the CoE contemplates.
Accordingly, the Tribunal finds that the Applicant meets the criteria contained in cl 573.222 of Schedule 2 of the Regulations.
GENUINE TEMPORARY ENTRANT CRITERION
The critical issue in this case is whether the Applicant satisfies the genuine temporary entrant criterion. Clause 573.223(1)(a) of Schedule 2 of the Regulations sets out the genuine temporary entrant criterion in the following manner:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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 meets the requirements of subclause (1A) or (2).
For a review application before the Tribunal, it is the Tribunal that must be ‘satisfied’ of the requirements under cl 573.223(1)(a), not the Minister or his delegate. Accordingly, the word ‘Tribunal’ substitutes for ‘Minister’ for present purposes.
Meaning of ‘Genuine Temporary Entrant’ for a Student Visa
While not defined in the Regulations, the word ‘genuine’ may be taken to mean ‘authentic, ‘real’ or ‘true’, according to its ordinary and natural meaning.[22] The case authorities also state that, for an applicant to meet the genuine temporary entrant criterion, the Tribunal must reach two states of satisfaction.[23] First, the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student. Secondly, the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily. In this case, the critical issue relates to the second of these states of satisfaction.
[22] See the entry for ‘genuine’ in Oxford English Dictionary (Oxford University Press, 2nd ed, 1989); Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017).
[23] Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [23]; Tandukar v Minister for Immigration [2019] FCCA 3510, [33]-[60].
The Applicant must demonstrate that he has an intention to stay in Australia for a limited time only – not permanently. That intention must be unqualified.[24] This requirement reflects the temporary nature of being a student. A person chooses to study to meet a passing need to obtain specific skills and formal qualifications that will, in turn, place them in a better position with respect to future employment opportunities. Once they have had a reasonable amount of time to complete their studies, it is expected that the visa holder will immediately depart Australia.
[24] See Saini v Minister of Immigration and Border Protection [2015] FCCA 2379, [23], upheld on appeal in Saini v Minister of Immigration [2016] FCA 858.
The Tribunal acknowledges that this expectation is not without qualification. A student visa holder’s circumstances may change while studying in Australia. They may genuinely wish to extend their stay so they can undertake further study, such that there is a need for a further student visa application to be made. Alternatively, as a result of a personal relationship entered into with a permanent resident or Australian citizen, or an employer sponsorship, or for some other reason, they may wish to extend their stay in Australia by other legitimate means. And so, the student visa holder may become eligible to apply for another kind of visa before their student visa expires. However, in the absence of such circumstances arising, the general expectation remains. A student visa is granted anticipating that the visa holder will eventually cease being a student, return to their home country, and enter the workforce to put their newly acquired skills to economically productive use.
Ascertaining an Applicant’s Intentions
Ascertaining an applicant’s intentions calls for an inquiry into their state of mind. The Regulations direct the Tribunal to consider an applicant’s state of mind as it is at the time the Tribunal makes its decision.[25] That effectively means that the Tribunal must take a ‘snap shot’ of the applicant’s intentions, at that time, to determine whether the genuine temporary entrant criterion is met.
[25] Saini v Minister of Immigration [2016] FCA 858, [30]: ‘What is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.’
Nobody has direct access to an applicant’s mental thought processes. The Tribunal must therefore look to sources of evidence, extraneous to an applicant’s mind, from which reasonable inferences may be drawn as to what their actual intentions are likely to be.
Declared Intentions
A convenient starting point is to consider any relevant stated intentions that may have been made by an applicant. Reference may be made to any relevant statements made by the applicant in oral evidence or contained in documentary material before the Tribunal. Consideration may also be given to other statements previously made, such as those contained in the applicant’s original visa application lodged with the Department of Immigration and Border Protection (‘the Department’).
The Tribunal is mindful that the expressed intentions of an applicant are not necessarily determinative. They may even be unhelpful on occasions. Statements made by an applicant are potentially unreliable because they tend to be self-serving. Applicants are likely to declare that they intend to stay in Australia temporarily as a student because that is what the law requires of them to be granted a visa. Indeed, it is a standard requirement that an applicant must make such formal declarations upon lodging their visa application with the Department. The Tribunal must therefore look beyond an applicant’s stated intentions and consider more objective evidence that may tend to support or undermine an applicant’s declared intentions.
Objective Considerations and Direction No. 53
The Tribunal is specifically directed to objective considerations by the Regulations. Clause 573.223(1)(a) obliges the Tribunal to have regard to the applicant’s circumstances, immigration history and any other relevant matter.[26] The Tribunal must also have regard to Direction No. 53, which elaborates upon the regulatory criteria. It requires the Tribunal to consider an applicant’s circumstances in their home country,[27] their potential circumstances in Australia,[28] the value of the proposed course of study to their future,[29] and their immigration history.[30]
[26] Migration Regulations 1994 (Cth), Sch 2, cls 573.223(1)(a)(i), (ii) and (iv), respectively. Clause 573.223(1)(a)(iii) also requires the Tribunal to have regard to the intentions of a parent, legal guardian or spouse of an applicant, if the applicant is a minor. This particular consideration is not germane to the present case because the Applicant is not a minor.
[27] Direction No. 53, cls 6, 9, 10. This includes taking into account the following: the applicant’s reasons for not undertaking the proposed study in their own country or region, if a similar course is already available there, and whether the applicant has reasonable motives for proposing to study the course in Australia (cl 9(a)); their personal ties to their home country (eg., family, community and employment) and whether those ties would serve as a significant incentive for them to return home (cl 9(b)); their economic circumstances that would present as a significant incentive for them not to return to their home country, which may include consideration of their circumstances relative to the home country and to Australia, and their circumstances in their home country relative to the circumstances of others in that country (cl 9(c), 10); military service commitments that would present as a significant incentive for them not to return to their home country (cl 9(d)); and political and civil unrest in their home country, including situations that may induce them to apply for a student visa as a means of obtaining entry to Australia for the purpose of remaing indefinitely (cl 9(e)).
[28] Direction No. 53, cls 6, 11. This includes taking into account the following: the applicant’s ties with Australia which would present as a strong incentive to remain in Australia, which may include family and community ties (cl 11(a)); evidence that the student visa program is being used to circumvent the intentions of the migration program (cl 11(b)); whether the student visa is being used to maintain ongoing residence (cl 11(c)); whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful student visa application outcome (cl 11(d)); the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider (cl 11(e)); the applicant’s previous study and qualifications (cl 11(e)); the realistic level of knowledge an applicant is expected to have, and the level of research they have undertaken, in relation to their proposed course of study and living arrangements (cl 11(e)).
[29] Direction No. 53, cl 12. This includes taking into account the following: whether the student is seeking to undertake a course that is consistent with their current level of education (cl 12(a)); whether the course will assist the applicant to obtain employment or improve employment prospects in their home country (cl 12(a)); whether the applicant has made any reasonable changes to career or study pathways (cl 12(a)); the relevance of the course to the applicant’s past or proposed future employment either in their home country or a third country (cl 12(b)); remuneration the applicant could expect to receive in their home country or a third country, compare with Australia, using the qualifications to be gained from the proposed course of study (cl 12(c)).
[30] Direction No. 53, cls 4, 5, 13, 14. An applicant’s immigration history includes both their visa history and travel history (cl 13). Consideration should be given to the following: the applicant’s previous visa applications for Australia or other countries, including pending applications, and the circumstances of any visa application outcomes (cl 14(a)); whether the applicant complied the conditions of previous visas and, if not, whether there were circumstances beyond their control (cl 14(b)(i)); whether the applicant left the country before their visa expired and, if not, whether there were circumstances beyond their control (cl 14(b)(i)); whether a previously held visa was cancelled or considered for cancellation, and the associated circumstances (cl 14(b)(ii)); the amount of time an applicant has spent in Australia (cl 14(b)(iii)); whether the student visa may be used primarily for maintaining ongoing residence in Australia (cl 14(b)(iii); whether an applicant has undertaken a series of short, inexpensive courses (cl 14(b)(iii)); whether an applicant has been in Australia for some time without successfully completing a qualification (cl 14(b)(iii)); whether the applicant has complied with the immigration laws of other countries, and the circusmtances surrounding any non-compliance (cl 14(b)(iv)).
Direction No. 53 also states that weight should be placed on an applicant’s circumstances that indicate that the student visa is intended primarily for maintaining residence in Australia.[31] The circumstances of some student visa applications may require the Tribunal to engage in further scrutiny of the merits of the application.[32]
[31] Direction No. 53, cl 8.
[32] Direction No. 53, cl 4. Specifically, cl 4 directs attention to the following matters: relevant information on migration fraud and immigration compliance compiled by the Department (cl 4(a)); whether an applicant or applicant’s relative has a concerning immigration history (cl 4(b)); whether an applicant’s proposed course is unrelated to previous studies or employment (cl 4(c)); apparent inconsistencies in information provided by the applicant in their student visa application (cl 4(d)).
Direction No. 53 also stipulates that the factors specified in it should not be used as a checklist. They are intended only as a guide for decision makers, which includes the Tribunal, when they come to consider an applicant’s circumstances as a whole in determining whether the applicant satisfies the genuine temporary entrant criterion.[33] The Tribunal should assess whether, on balance, the genuine temporary entrant criterion is satisfied by considering the applicant against all factors specified in Direction No. 53 as well as any other relevant information provided by the applicant or that is otherwise available to the Tribunal.[34] Other relevant information includes information that may be either beneficial or unfavourable to the applicant.[35] Ultimately, the Tribunal should refuse the visa (or, in this case, affirm the delegate’s decision) if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia.[36]
[33] Direction No. 53, cl 1.
[34] Direction No. 53, cl 2.
[35] Direction No. 53, cl 16.
[36] Direction No. 53, cl 5.
Direction No. 53 is a lawful direction of the Minister made in accordance with s 499 of the Act. The Tribunal is therefore bound to consider it and, to the extent that its terms are relevant, apply it to the Applicants’ case.[37] Accordingly, the terms of Direction 53 and their application to the Applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusion as to the merits of the Applicant’s case, which includes an assessment of how and to what extent each factor in Direction No. 53 is relevant and applicable, independently of any conclusions reached by the delegate or the original Tribunal.
[37] FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].
The Tribunal must also have regard to the principles pronounced by the Full Court of the Federal Court of Australia in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16. In Kumar, the Court drew a distinction between three aspects of the Tribunal’s decision-making processes when an obligation to consider the application of the various factors set out in Direction No. 53 arises. First, the Court referred to the extent to which the Tribunal is obliged to consider the factors in any given case before making a decision. Secondly, it referred to the extent to which the factors must be referred to in the Tribunal’s reasons for its decision. Thirdly, it referred to the extent to which the Tribunal must make findings in relation to each factor. In this regard, a summary of the Court’s essential observations is provided as follows:
(a)In relation to the Tribunal’s obligation to consider the Direction No. 53 factors in application to a particular case, before making a decision in that case:[38]
[38] Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, [82]-[87].
(i)For those factors which Direction No. 53 states the Tribunal ‘must have regard to’ (being the factors listed in cls 9, 11, 12 and 14), the Tribunal should turn its attention to each factor and consider whether and how it should be brought to bear in reaching its decision.[39] The Tribunal must actively engage with each mandatory consideration and do so genuinely.[40] Factors considered to be sufficiently material to the decision must be brought to account in the decision-making process.
[39] Ibid [82]-[83].
[40] Ibid [84]-[85].
(ii)The weight to be given to each factor in application to the case is a matter for the Tribunal.[41] If a matter is not considered relevant or sufficiently material in a case, it need not be given any weight. In such a situation, the Tribunal has had regard to the factor in determining, after genuine consideration, that the factor was not sufficiently relevant or material.[42]
[41] Ibid [85].
[42] Ibid [86].
(b)In relation to the Tribunal’s obligation to refer to the Direction No. 53 factors in its reasons for its decision in a particular case:
(i)The question of whether the Tribunal’s consideration of a factor should be referred to in its statement of reasons for the decision is separate to the question of whether the matter should be considered before it makes its decision.[43]
(ii)The Tribunal is obliged under s 368 of the Act to give a written statement setting out its decision, the reasons for the decision and its findings on any material questions of fact. The Tribunal must refer to the evidence or any other material on which the findings of fact were based.[44]
(iii)It is desirable for the Tribunal to state in its reasons that it has considered the factors which Direction No. 53 requires it to consider in application to the case.[45] However, the Tribunal is not obliged to refer to an immaterial matter in its reasons.[46]
(iv)The Tribunal’s failure to refer to a factor in application to the case in its reasons may lead to the inference that it was not mentioned because it was not considered by the Tribunal to be material. Alternatively, it may lead to the inference that the matter was overlooked. The appropriate inference to draw depends on all the circumstances.[47]
(v)The Tribunal’s reasons are meant to inform. They are not to be scrutinised by over-zealous judicial review by the identification of some inadequacy in the way in which the reasons are expressed.[48]
(c)In relation to the Tribunal’s obligation to make findings in relation to each Direction No. 53 factor in a particular case:
(i)Direction No. 53 does not impose a jurisdictional obligation to make a finding in relation to each factor irrespective of its materiality. If the Tribunal considers a factor not to be material, a finding in relation to it does not need to be made.[49]
(ii)There is no obligation for the Tribunal to express in its reasons that it has not made a finding in relation to a Direction No. 53 factor because it considered the factor not to be material.[50]
[43] Ibid [83], [88].
[44] Ibid [9].
[45] Ibid [87].
[46] Ibid [87].
[47] Ibid [89]-[94]
[48] Ibid [95].
[49] Ibid [96].
[50] Ibid [96].
Finally, it is appropriate to note that the specific considerations referred to in both the Regulations and in Direction No. 53 are not exhaustive. The Tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student in Australia.[51]
[51] Migration Regulations 1994 (Cth), Sch 2, cl 573.223(1)(a)(iv); Direction No. 53, cls 2(b), 5, 16.
Does the Applicant Meet the Genuine Temporary Entrant Criterion?
Applicant’s Declared Intentions
As the delegate’s decision record notes, when the Applicant originally applied for his student visa, he stated that he wished to reside in Australia so that he could complete two marketing courses. He said that he could use the skills acquired from studying marketing to open his own bakery or café. A career in food and hospitality was his stated goal at that point in time.
By the time he came to appear before the original Tribunal in early May 2017, he had completed the first of the marketing courses but not the second. Instead, he had chosen to undertake a Diploma of Building and Construction course after he completed the Diploma of Marketing. He completed that course in April 2017.
The Applicant’s case before the original Tribunal was that he needed a student visa so that he could complete a Bachelor of Business course. In his oral evidence given to the original Tribunal, he stated that he wanted to complete the Bachelor of Business course so that he could ‘get a better job’. When the original Tribunal asked him what exactly he meant by ‘better job’, he said ‘doing management’ in the city of Amritsar in Punjab. He said that there are ‘so many companies’ where he could obtain a job with a Bachelor’s degree. However, other than naming a few well-known international companies, he did not elaborate any further as to what exactly he wanted to do with this qualification. Upon further inquiry by the original Tribunal, he indicated that he wanted to preserve his options when he returns to India. He suggested that he did not know whether he will be able to secure a job in management when he completed the Bachelor’s qualification, and so he contemplated the possibility of reverting to his original idea of opening his own bakery or café. The Applicant did not explain to the original Tribunal why his recently completed Diploma of Building and Construction course was relevant either to obtaining a ‘better job’ in India or to opening his own bakery or café.
By the time the Applicant came before the Tribunal for a further hearing on 28 October 2019, a sufficient amount of time had elapsed for him to have completed the Bachelor of Business course that he had proposed to the original Tribunal. According to the CoE that he had provided to the original Tribunal, he had enrolled in that course on 27 April 2017. The course was due to start on 29 May 2017 and finish on 19 May 2019. However, he never started it. The Applicant sought to explain his failure to start the Bachelor’s course in an undated written statement which he filed with the Tribunal on 20 October 2019, headed ‘Explanation of Gap’. It is reproduced in full below (grammatical and expressional errors reproduced verbatim):
EXPLANATION OF GAP
I am writing this explanation in regards to gap in my studies. I came to Australia with dream of further studies in year 2009. I met with lots of people during my study period. They shed light on various carrier opportunities about different fields, which would be helpful for my bright future so I tried to cover number of streams as much as I can, for improving my skills. From July 2009 I started my academic studies till 2017 without any defer and any gap.
But finally at one point I decided that I should plan my carrier wisely and pursue for one carrier option so I choosed further studies in Management and went for diploma of marketing and diploma of building and construction (management). Unfortunately my dreams shattered when my student visa get refused in 2015 by DIBP but still I continued my studies for next two years with the hope that I will get chance to chase my dreams. After that I applied for bachelor of business (management) and I felt hopeless when AAT did not approved my study visa. I was so depressed from that day but my brother, who is here with me, taught me that the life is not bed of roses. If you want to achieve something in your life then you have to do hard work and wait for your right time. He supported me financially and mentally throughout this period. He and my family motivated me a lot, and I lodged my file in federal circuit court, but it took around two and half precious years of my life. I was facing this hard time and was so depressed. I was not able to concentrate on my studies properly and I gave up. I dropped my studies because I was scared about failure as I had a bad experience in my past with refusal of my student visas. There was always a thought around my head that if I will loose battle I have to drop my studies in between and the amount of money, going to spend on my course will become worthless. The fear about this squeezed me from inside every day for every second. I felt so helpless because the circumstances were so complicated and I was not in a state of mind to continue my studies.
As I did my studies sincerely from the day I came to Australia and I was a genuine student. I have all certificates and evidences to prove myself innocent. I advocated my self and finally see a ray of light when I got federal decision in my favour. Now I want to give a new stardom to my dreams and want to pursue my further studies, which I dropped due to hard circumstances. I hope this time I will get chance to prove myself. I will be thankful.
Kind regards,
Gurinderpal Singh
The Applicant also filed a separate undated written statement with the Tribunal at the same time, headed ‘Statement of Purpose’, which contains similarly expressed sentiments about what he did following the original Tribunal’s decision. The relevant part of his ‘Statement of Purpose’ is reproduced below:
I was shocked about the decision because I have completed my all courses sincerely and we have right to educate in Australia. I was so depressed but my brother and family give me psychological support and I lodge my file in federal circuit court in hope of justice. I got decision in my favour but it took two precious years of my life. From 2017 to 2019 my case ran in federal, I was so depressed during this period. The circumstances were not in my favour and I was not in a sound state of mind to continue my studies, so I dropped my studies due to lack of concentration. I spend every second of my life in fear of failure that if I will loss the battle what will I do in my future during this period of time and there was a thought around my head that my life will become meaningless.
The Applicant did not study for some two and half years until he appeared at the hearing before the Tribunal on 28 October 2019. The Tribunal invited him to attend that hearing on 12 September 2019. The Applicant subsequently enrolled in the Graduate Certificate in Management course. In his ‘Statement of Purpose’, the Applicant explained his reasons for wanting to undertake this course:
WHY THIS COURSE: I saw a ray of light and a hope of justice when I win my case in federal and decision was in my favour. Now I have decided to give a new stardom to my carrier but I was not in touch of studies from last more than two years that why I am bit worried about taking hard study. I have interest in management so firstly I think I should give time to myself for refreshing my knowledge about management so I want to go for graduate in management (learning). It will help to polish my skills as well as add on new concepts of effective communication and leadership as I went through mental trauma so it will be a better option to start my educational carrier again. Additionally, It is dream of my father that I should complete my bachelors but if I am not able to continue my bachelors yet, I should at least complete a level up education to make my father feel proud on myself.
At the hearing before the Tribunal, the Applicant gave evidence that was generally consistent with the contents of his written statement. He said that he now wanted to undertake the Graduate Certificate because he wants to ‘polish [his] skills in management and leadership’. He also said that his family has a farm and agricultural business back in India, which involves the growing of wheat and rice. He said that his father currently runs the business, which has one employee. The Applicant gave evidence suggesting that the Graduate Certificate in Management will assist him in running the family business upon his return to India. The Applicant did not suggest that he wished to return to India to open his own bakery or café, nor did he suggest that he wished to secure a role in management with a company in Amritsar.
When the Tribunal asked the Applicant whether he wished to remain in Australia on a longer-term basis, he said that he wished to stay in Australia just for study purposes. When the Tribunal expressed concern to the Applicant about his length of stay in Australia to date, which amounts to well over ten years, he said that he is still young and that he has remained here because there is ‘so much to study’. He emphasised to the Tribunal that, due to ‘globalization’, it was important for him to increase his skillset so that he optimized his chances of securing employment. When the Tribunal asked the Applicant what he plans to do once he completes the Graduate Certificate course, he stated that he intends to return to India. He reiterated that he is a genuine student and ‘just here for study’. He said he does not plan to apply for permanent residence in Australia.
Taken at face value, the Applicant’s evidence given at the Tribunal hearing would seem to convey an intention on his part to remain in Australia temporarily. He has claimed he intends to return to India in October this year, and that he has no intention of seeking to stay in Australia permanently. However, the Applicant’s oral evidence in this regard is significantly undermined when consideration is given to more objective factors.
Applicant’s Circumstances in Home Country
The Tribunal has considered the Applicant’s reasons for not undertaking a course similar to the Graduate Certificate in Management either in India or in another country in that region. In his written ‘Statement of Purpose’, the Applicant stated the following:
WHY AUSTRALIA, NOT HOME COUNTRY: I am living in Australia from last 10 years so I am pretty familiar about the atmosphere and education system of Australia. Moreover, Australia is currently the third most popular destination for international students in the English-speaking world. Many international students choose to study there because of the cultural diversity, friendly natives, lots of activities, fabulous and high quality of education as well as wide choice of subjects. However, Melbourne is among the world’s livable city in the world known for its stability, good healthcare, education, affordable housing and high quality of living.
The Tribunal accepts that the above words represent the Applicant’s rationale for choosing to study in Australia. However, the explanation is expressed in very general terms. The Applicant has not sought to explain his specific need to study the Graduate Certificate in Management course in Australia so that he is equipped with the necessary skills and qualifications to take-up a role in his family’s agricultural business, and why the Australian course would better fulfil his needs rather than a similar course in India. The Applicant has produced no evidence that suggests that he has done any specific research in relation to comparable courses that are available in India. The words in his statement suggest that he has chosen Australia essentially because he has become accustomed to living here for more than 10 years. His reasons appear to disclose that he is primarily applying for the visa because he wishes to maintain residence in a country which he believes to be highly ‘liveable’. By focusing on the quality of living in Australia, rather than on the specific benefits that the Graduate Certificate in Management will yield for his future career, he has failed to advance his claim of being a genuine applicant for a student visa very far at all. Consideration of the Applicant’s reasons for not undertaking a similar course in India do not, therefore, weigh in his favour.
The Tribunal has also considered the extent of the Applicant’s personal ties to India. The Applicant stated in evidence that, apart from one brother who is currently residing in Australia, his family and relatives are all in India. The Applicant himself is single. While he has resided in Australia now for more than a decade, the Tribunal accepts that he has made regular return visits to India to visit family and friends during that time. Some of those visits have been for periods lasting several months. Having regard to this evidence, it is clear that the Applicant’s familial ties to India are strong. However, it is also clear, given the Applicant’s decision to reside in Australia continuously for the last decade, that they are not so strong as to constitute a significant incentive for him to return to his home country permanently.
The Tribunal notes that there is no other evidence before it that suggests the Applicant has any other significant ties to India. This comes as no surprise to the Tribunal. Any community ties he may have once had in India, apart from his family ties, would have significantly diminished with the passage of time.
The Tribunal has considered the Applicant’s economic circumstances in India. The Applicant has not drawn to the Tribunal’s attention any specific assets that he owns in India. Again, that comes as no surprise to the Tribunal given his age and the amount of time that he has spent in Australia away from his home country. The Tribunal accepts that he may have contingent beneficial interests in property and business assets owned by his family in India. However, the Tribunal does not consider the existence of any assets of this nature to be operating as an incentive, significant or otherwise, to return to India.
The Tribunal has also considered the Applicant’s economic circumstances in Australia relative to his circumstances in India. Australia is a highly desirable country in which to live. The United Nations Human Development Index (‘UNHDI’) ranks Australia sixth in the world in terms of social and economic development.[52] It is an objective measure that shows that the standard of living and quality of life in Australia is relatively high, as compared to the rest of the world. Residents enjoy high levels of material wealth, a high life expectancy and significant social benefits. The general conditions in the Applicant’s home country is not nearly as attractive. The UNHDI ranks India 129th. Assuming all other things being equal, the UNHDI indicates with a certain degree of clarity that the Applicant will be far better off remaining in Australia than he would be if he were to return to India. Objectively, the Applicant has a strong incentive to remain in Australia for this reason alone. The Tribunal finds that the Applicant’s economic circumstances in Australia, relative to his economic circumstances in India, present as a significant incentive for him not to return to India.
[52] United Nations Development Program, Human Development Report 2019 – Beyond Income, Beyond A, Beyond Today: Inequalities in Human Development in the 21st Century (UNDP, 2019) 326-31.
The Tribunal has considered whether there may be military service commitments that would present as a significant incentive for the Applicant not to return to India. The Applicant has disclosed no such concerns. The Tribunal is otherwise not aware of any information that might suggest that the Applicant might be obliged to undertake such service.
The Tribunal has also considered whether there is any political or civil unrest in India, with particular reference to the Applicant’s home region of Amritsar. The Applicant has disclosed no such concerns. Again, the Tribunal is not aware of any information which indicates that there might such unrest in the Applicant’s home region. Accordingly, there is no evidence of a situation of this nature that might be inducing the Applicant to apply for a student visa as a means of maintaining residence in Australia indefinitely.
Applicant’s Potential Circumstances in Australia
As noted above, the Applicant has a brother residing in Australia, indicating he has some, albeit limited, familial ties to the jurisdiction. However, greater significance lies in the fact that the Applicant has been living in Australia for well over 10 years. With the passage of time, the Applicant has become accustomed to the Australian way of life and his ties to the community have strengthened. Although he is single, he has built up a satisfying life in Australia. In the course of the hearing before the Tribunal, the Applicant disclosed that he works regularly as a cab driver, and so has continued to enjoy the relatively high wages that the Australian economy produces. He also has a social network, which includes playing cricket. He has spent more than a third of his life in Australia, and virtually his entire adult life. The practical reality is that he is now likely to regard Australia as his home. If he is to leave Australia now, that will necessarily involve significant upheaval in his life. For these reasons, the Tribunal finds that the Applicant has a strong incentive to remain in Australia.
The Tribunal has given consideration to the Applicant’s knowledge of living in Australia and the level of research he has undertaken in relation to his living arrangements while studying in Australia. In this regard, the Tribunal has inferred that the Applicant is likely to have the level of knowledge that any reasonable person who has lived in Australia continuously for more than a decade would have. With the passage of time he has gained extensive knowledge of Australia simply by living in the country. This fact does not in any way assist his case for a student visa.
The Tribunal has given consideration the Applicant’s level of knowledge of the Graduate Certificate in Management and of the course provider, Lennox Institute. Having regard to the VET courses previously undertaken by the Applicant, which include courses in business, marketing and management, the Tribunal would have expected the Applicant to be able to display a high level of knowledge about the Graduate Certificate course and its provider. In his written ‘Statement of Purpose’, the Applicant stated that he has an interest in management and wanted to refresh his knowledge about the subject, which is why he enrolled in the course. He said the course will help him ‘polish [his] skills as well as add on new concepts of effective communication and leadership’. At the hearing before the Tribunal, very little more was said. The Tribunal considers this level of knowledge to be very poor in the circumstances of the Applicant’s educational background. It appears he has undertaken very little research before enrolling in the Graduate Certificate in Management. The Tribunal finds that the Applicant’s level of knowledge of the Graduate Certificate in Management and Lennox Institute is inconsistent with that which is to be expected of a person who is genuinely interested in completing the course.
The Applicant’s lack of research into the course is probably best explained by the timing of his decision to enrol in it. Following the FCCA’s orders setting aside the original Tribunal’s decision, on 12 December 2018 the Tribunal wrote to the Applicant acknowledging the FCCA judgment. That letter also advised the Applicant that his case would be re-allocated to another Member and that he may also receive an invitation to attend a further hearing. The case was re-allocated and the Tribunal formally reconstituted many months later. On 12 September 2019, the Tribunal wrote to the Applicant inviting him to the hearing that was to take place on 28 October 2019. The Applicant then enrolled in the Graduate Certificate in Management on 18 October 2019, 10 days before the hearing. The Applicant’s decision to do so was apparently made in haste, without a proper assessment having been undertaken as to whether the course was suitable for his specific needs. The irony to be found in the timing of the enrolment is not lost on the Tribunal. The Applicant claims that he has only ever remained in Australia to study. Yet his enrolment in this course comes after two and a half years of not being enrolled in any course at all. The Tribunal finds that the Applicant’s enrolment in the Graduate Certificate in Management course was made in haste because it was prompted by his realisation that the that Tribunal’s reconsideration and redetermination of his review application was imminent, rather than being borne out of a genuine desire to study.
Value of Graduate Certificate in Management to Applicant’s Future
The Tribunal has given consideration to whether the Graduate Certificate course is consistent with the Applicant’s current level of education. The course may be seen as representing a progression in the Applicant’s formal academic studies. Graduate Certificates sit at Level 8 on the Australian Qualifications Framework.[53] The Applicant’s previous studies, which include Diploma and Advanced Diploma courses in management, sit at Level 6 of lower. The Applicant’s proposal to undertake a Graduate Certificate in Management is consistent with his current level of education in that, once completed, it will constitute the highest level of qualification that the Applicant has obtained.
[53] See generally >
The Tribunal has also considered the accretion in value that this qualification will provide for the Applicant, assuming that he successfully completes it, in terms of improving his employment prospects. Other than stating to the Tribunal that he needs to ‘polish’ his skills, the Applicant has not sought to explain how the Graduate Certificate course will improve his employability. He has advanced his case for the student visa on the basis that, once he completes the Graduate Certificate, he will return to India and assume a responsibility within his family’s agricultural business. He has not identified any other career plan. The family business has one employee, according to the Applicant’s own evidence. Having regard to the VET qualifications the Applicant has already obtained in Australia, which include Diplomas in business, management and marketing, as well as building and construction, the Tribunal cannot discern the additional benefit that completion of a Graduate Certificate in Management will provide the Applicant. Indeed, in the Tribunal’s view, undertaking such a course seems somewhat excessive for the purpose the Applicant has articulated. The Applicant has produced no satisfactory evidence that demonstrates the contrary. The Tribunal finds that completion of a Graduate Certificate will be of no tangible benefit to the Applicant, in terms of obtaining or improving his employment prospects in his home country.
The Applicant has otherwise not sought to explain the relevance of the Graduate Certificate in Management has to his past or proposed future employment either in India or a third country.
The Tribunal has given consideration to the issue of whether the Applicant’s enrolment in this course, and his stated intention to return to India to work for the family business, represents a reasonable change to career or study pathways. Having regard to the wide range of courses the Applicant has studied for the last 10 years in Australia (which includes baking, management, business, marketing, painting and decorating, and building and construction), the Tribunal considers that the Applicant has had ample opportunity to settle on a certain education and career trajectory. In the course of the present visa application, the Applicant proposed to open a bakery or café when his case was before the delegate, to secure a job in management at a company in Amritsar when it was before the original Tribunal, and to work for the family business when he came before the Tribunal in October last year. He has changed his career plans frequently. The Tribunal finds that the Applicant has no settled career plan and that the proposed Graduate Certificate course does not reflect a reasonable change to career or study pathways.
The Applicant has not produced any evidence which shows the remuneration he could expect to receive in India or in a third country, compared to Australia, using the qualifications to be gained from completing the Graduate Certificate in Management.
Applicant’s Immigration History
The Applicant’s immigration history in relation to Australia is cause for significant concern within the context of his present application for a temporary student visa. As the Applicant admitted in evidence, he has held two student visas since arriving in Australia in May 2009 before applying for his third in 2015. He has remained in Australia on student visas, or associated bridging visas, for the express purpose of studying as a full-time student. The Tribunal is now presented with a situation involving a non-citizen who is applying for his third student visa after more than 10 years of continuous residence in Australia as a student. With each day that passes, the Applicant’s stay in Australia becomes less temporary and more permanent. The Tribunal finds that the Applicant has resided in Australia on a continuous basis for more than 10 years and that this evidence alone strongly indicates that he is attempting to use the student visa program to maintain ongoing residence in Australia and that he is not a genuine temporary entrant.
Other than the present application on review, the Tribunal is not aware of any applications for visas that the Applicant has made in Australia or other countries that have been refused.
The Tribunal accepts that the Applicant has been compliant with the visa conditions of those Australian visas that he has held to date. In particular, in relation to the two student visas that were issued to him covering the period 2009 to 2015, he has always complied with those conditions that obliged him to remain enrolled, attend classes, and maintain satisfactory progress in relation to his courses. That is self-evident from the fact that he successfully completed all those VET courses in which he was enrolled during that period. He has also completed the more recent courses in marketing and building and construction while on a bridging visa awaiting the outcome of this review, when the conditions of his bridging visa imposed no study obligations at all. The Applicant has been keen to draw the Tribunal’s attention to his propensity to be a good student in this respect. Putting aside the Applicant’s failure to pursue the Bachelor of Business course, it is certainly true that the Applicant has successfully completed every course in which he has been enrolled. However, the Applicant’s argument here rests on a false premise. The more courses a person completes does not necessarily make for a more genuine student. There is no such thing as a genuine student in perpetuity. But that appears to be what the Applicant is inviting the Tribunal to accept. The Applicant’s argument seems to overlook that studying is not an end in itself. It is a transitory occupation that is undertaken by a person who wishes to gain knowledge and skills that will permit them to advance within a chosen vocation. The Applicant has, over a period of more than ten years, gone from one VET sector course to another, in many different fields, without any obvious career path. Any value that may have been found in the Applicant’s propensity to comply with his visa conditions in his early years of studying in Australia, in terms of demonstrating his genuineness as a student, has rapidly disappeared in the more recent years gone by. In the Applicant’s case, his conduct of complying with his student visa conditions over such a lengthy period is more consistent with the behaviour of person who is attempting to maintain ongoing residence in Australia, rather than of a person who claims to be a genuine student.
The Tribunal has no information before it relating to the Applicant’s compliance with conditions of visas issued to the Applicant by other countries.
The Tribunal does not have any material before it that suggests any of his visas have been cancelled or contemplated for cancellation by the Australian government. This is also entirely consistent with any reasonable attempt by a non-citizen to maintain ongoing residence in Australia.
The Tribunal does not have any material before it that suggests any of his visas have been cancelled or contemplated for cancellation by other countries.
The Tribunal has given consideration to the issue of whether the Applicant has undertaken a series of short, inexpensive courses during his time in Australia. Within the framework of Australia’s student visa program, there is a finite number of courses available to international students studying in Australia. The duration and cost of each course falls within a determinable range. In 2018, the Australian government estimated the tuition fees of VET sector courses (Certificate I to IV, Diploma and Advanced Diploma) to range from $4,000 to $22,000 per year of study.[54] Such courses tend to take between three months to two years of full-time study to complete. Higher Education sector courses (Bachelors, Masters and Doctoral degrees) were estimated to cost between $20,000 and $50,000 per year.[55] Higher Education sector courses take between one and four years of full-time study to complete. The overall range of tuition costs for all courses covered by the student visa program is therefore $4,000 to $50,000 per year, with VET sector courses tending to be cheaper than Higher Education sector courses. Course duration ranges from three months to four years, with VET sector courses tending to be shorter than their Higher Education sector counterparts. The Tribunal makes the following observations in relation to the Applicant’s studies since 2009:
(a)From 2009 to 2017, the Applicant undertook a series of eight VET sector courses relating to a variety of different industries. They were all 12 months or less in duration. In this regard, they may be regarded as relatively ‘short’. While the Tribunal does not have information that reveals the exact cost of each course, based on the Tribunal’s accumulated knowledge of the hundreds of CoEs in other cases that have come before it, the Tribunal is of the view that these courses may all be characterised as relatively inexpensive.
(b)The Bachelor’s degree, in which the Applicant enrolled but never started, was a significantly longer and more expensive course. However, he never started this course.
(c)The Graduate Certificate in Management, which forms the basis of the current visa application on review, is a 12 month course. This, too, may be regarded as a relatively short course. While not the cheapest of VET sector courses, the Tribunal nevertheless finds that the total tuition fee of $11,500 still relatively inexpensive when compared to Higher Education sector courses.
[54] See < Ibid.
The Tribunal is concerned that the Applicant has undertaken a series of short, inexpensive courses over the significant period of time that he has been residing in Australia. This evidence highlights that the Applicant has managed to maintain ongoing residence in Australia, while maintaining compliance with the conditions of his student visa, on a relatively cheap basis. The pattern of moving from one cheap course to another over an eight-year period should, according to Direction No. 53, alert the Tribunal to the real possibility that the Applicant may have been attempting use the student visa program for the primary purpose of maintaining ongoing residence in Australia. That concern might have been quickly dispelled if the Applicant had demonstrated the accretion in value that the completion of each course represented in terms of improving his overall employability and career advancement. However, the courses which he completed during that time do not form a cohesive collection of qualifications supporting a particular career trajectory. Indeed, there appears very little educational unity in these qualifications at all. The Tribunal finds that the Applicant has spent more than eight years undertaking a series of short, inexpensive courses which, in turn, suggests he has been attempting to maintain ongoing residence in Australia and that he is not a genuine temporary entrant.
The Tribunal has also given consideration to whether Applicant has been onshore for some time without successfully completing a qualification. In that regard, the Tribunal has considered the Applicant’s failure to make any meaningful progress towards completion of the Bachelor of Business course which he had enrolled in just prior to the hearing before the original Tribunal in May 2017. The Applicant disclosed in his ‘Explanation of Gap’ that he became ‘depressed’ after the original Tribunal affirmed the delegate’s decision and that is why he could not progress with his studies. His claims of depression are uncorroborated by any independent medical or other psychological evidence. As the Applicant stated in evidence, he did not seek any professional help. At most, the evidence discloses that the Applicant was profoundly disappointed with the original Tribunal’s decision and that is all. He managed to work and play cricket while continuing to reside in Australia for two and a half years. In light of this evidence, the Tribunal does not accept that the Applicant was depressed in the clinical sense.
If the Applicant’s intentions of completing a Bachelor of Business were genuine, that certainly explains why he exercised his right to seek judicial review of the original Tribunal’s decision. Pending the outcome of that judicial review, one would have then expected him to make progress with the Bachelor’s course. But he did not do so. If his disappointment with the original Tribunal’s decision, and the stress and uncertainty surrounding the FCCA proceeding was too much for him to bear, he was always at liberty to return to India. But he did not do that either. He instead chose simply to reside in Australia without studying. The Tribunal finds that such behaviour is inconsistent with the behaviour of a genuine student visa applicant.
The Tribunal has no information before it concerning the Applicant’s travels to other countries. Accordingly, it is unaware of the Applicant’s compliance with the immigration laws of any other country.
Applicant’s Attempt to Circumvent Australia’s Migration Program and to Maintain Ongoing Residence
The Tribunal notes that the principal purpose of the Australian Government’s student visa program is to enable non-citizens, who are not permanent residents, to study in Australia.[56] The program contemplates visas being granted to persons who are both genuine students and genuine temporary entrants.[57] It is for this limited purpose that student visas are granted. They are not granted for purposes of a kind contemplated by other types of visa (e.g, working and skilled visas, and family and partner visas), many of which are designed to offer non-citizens a path to permanent residence and citizenship.
[56] Direction No. 53, ‘Preamble’.
[57] Ibid.
The Tribunal has given consideration to the evidence before it that suggests the Applicant is attempting to use the student visa program to circumvent the intention of Australia’s migration program. That evidence, being circumstantial evidence, includes the following:
(a)the Applicant’s economic circumstances in Australia relative to his economic circumstances in India (see paragraph [59] above);
(b)the Applicant’s ties to Australia (see paragraph [62] above);
(c)the Applicant’s lack of satisfactory knowledge in relation to his proposed course of study (see paragraph [64] above);
(d)the timing of the Applicant’s enrolment in his proposed course of study (see paragraph [65] above);
(e)the lack of tangible benefit for the Applicant, in terms of improving his employment prospects, resulting from completion of his proposed course of study (see paragraph [67] above);
(f)the Applicant’s length of stay in Australia (see paragraph [71] above);
(g)the Applicant’s propensity to be a ‘perpetual’ student (see paragraph [73] above);
(h)the Applicant’s enrolment in a series of short, inexpensive courses (see paragraphs [77] and [78] above);
(i)the Applicant’s time in Australia from 2017 to 2019 when he was not studying anything at all (see paragraph [79] above);
(j)the Applicant’s unsatisfactory rationale for enrolling in his proposed course of study in Australia, as opposed to enrolling in a similar course in India or another country in the region (see paragraph [55] above);
(k)the lack of any explanation being given by the Applicant as to the relevance of his proposed course of study to his past or proposed future employment either in India or a third country (see paragraph [68] above);
(l)the Applicant’s lack of a settled career plan and that his proposed course of study does not reflect a reasonable change to career or study pathways (see paragraph [69] above);
(m)the lack of any evidence produced by the Applicant that demonstrates the remuneration he could expect to receive in India or in a third country, compared to Australia, once he completes his proposed course of study (see paragraph [70] above).
The evidence is overwhelming. The Tribunal finds that the Applicant is attempting to use the student visa program to circumvent the intentions of Australia’s migration program. By necessary implication, the same evidence has led the Tribunal to find that the Applicant is attempting to obtain a student visa in order to maintain ongoing residence in Australia.
Other Relevant Matters
There appear to be no other matters relevant and material to the Tribunal’s determination.
Overall Assessment
Having regard to all the above considerations, the Tribunal finds that the Applicant would prefer to remain in Australia on an ongoing basis. The Tribunal does not accept the Applicant’s declared intention of genuinely wishing to remain in Australia temporarily as a student.
The Tribunal notes that the material considerations that have led to the Tribunal’s ultimate determination in this case are those unfavourable factors listed in paragraphs [81](a) to [83](i) above. The Tribunal’s consideration of the factors favourable to the Applicant did not change the outcome. The Tribunal’s consideration of the further unfavourable factors, not listed in paragraphs [81](a) to [81](i), only served to buttress the case against the Applicant. According to the Full Court of the Federal Court of Australia in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, it was therefore unnecessary for the Tribunal to incorporate into its reasons explicit reference to considerations other than those referred to in paragraphs [81](a) to [81](i). However, as stated at the outset of these reasons, the Tribunal has explicitly referred to all its considerations in its reasons out of an abundance of caution to ensure it complies with the FCCA’s orders in relation to this review application.
Conclusion
The Tribunal is not satisfied that the Applicant meets the criteria contained cl 572.223(1)(a) or, alternatively, the equivalent criteria applicable to Subclass 573 visas found in cl 573.223(1)(a) of Schedule 2 of the Regulations.
SUMMARY
Although the Applicant meets the enrolment criterion, he does not meet the genuine temporary entrant criterion.
DECISION
The Tribunal affirms the decision not to grant the Applicant a student visa.
Dr Jason Harkess
Member
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