Singh (Migration)

[2020] AATA 3177

Singh (Migration) [2020] AATA 3177 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurbaksh Singh

CASE NUMBER:  1825619

HOME AFFAIRS REFERENCE(S):          BCC2018/1222259

MEMBER:Michael Biviano

DATE:22 June 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 22 June 2020 at 5:29pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – enrolment in a registered course – applicant changed to Vocational courses – gap in studies – lengthy stay in Australia – limited value to employment prospects – reasonable change to study pathway – limited incentive to return – maintaining ongoing residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 14 August 2018 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 14 March 2018. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily.

4. On 24 February 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about whether he was enrolled in a registered course of study and a genuine applicant for entry and stay as a student. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by the prescribed period, being 10 March 2020 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant did not request an extension of time and provided the information outside of the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

6. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

7. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicants, in as much detail as is necessary to enable the examiner to establish the relevant facts.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 was whether the applicant was a genuine applicant for entry and stay as a student

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

10. 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?

11. 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.

12. 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.

13. The applicant is a 26-year-old Indian national who came to Australia on 31 July 2015 on a TU-573 visa on the basis that he was intending to study the following courses: Certificate in English, Certificate IV in Accounting, Diploma of Accounting and Bachelor of Accounting. 

14. The decision record of the delegate dated 14 August 2018, which was provided to the Tribunal by the applicant, confirms that the applicant made his current application for a Student (Class TU) (Subclass 500) visa on 14 March 2018 (Decision Record).  Further, the Decision Record confirms that the applicant has resided in Australia since July 2014 either on a student visa or bridging visa.

15. The Decision Record confirms that, based on the Provider Registration and International Student Management System (PRISMS) obtained by the delegate, the applicant had completed the following courses:

    a.General English on 6 February 2015;

    b.Certificate IV in Accounting on 30 June 2015;

    c.Diploma of Accounting on 31 December 2015;

    d.Certificate III in Commercial Cookery on 5 February 2017;

    e.Certificate IV in Commercial Cookery on 13 August 2017;

    f.Diploma of Hospitality Management on 18 February 2018.

16. The Decision Record confirmed that at the time of the current visa application, the applicant had intended to study an Advanced Diploma of Business and a Bachelor of Business.

17. On 11 March 2020 the applicant filed with the Tribunal a response outside the time required pursuant to an invitation to supply student information about the courses he was studying and had studied in Australia, together with information about his entry and stay in Australia, in accordance withs.359(2) of the Act (Response).

18. The applicant filed with the Response a Confirmation of Enrolment (COE) numbered B653E415 for the Diploma of Leadership and Management at Berkeley College, commencing on 6 April 2020 and concluding on 4 April 2021. The COE was created on 10 March 2020.

19. The applicant submitted the qualifications that he had obtained for the Certificate in English, the Certificate III and IV in Commercial Cookery and the Diploma of Hospitality Management to the delegate. He also submitted a COE numbered 8216DA52 for the Bachelor of Business at Stott’s College commencing on 19 March 2018 and concluding on 31 December 2020.

20. The applicant in the Response confirmed that there was a gap in studies where he was not enrolled from April 2018 to March 2020. There was no explanation given for the gap in studies.  Such a gap in studies is not reasonable in the circumstances.  Such a gap is inconsistent with a student who is in Australia temporarily and is genuinely studying in Australia with a purpose of undertaking and completing his studies and returning home expeditiously. Further, if the applicant was so focused on undertaking those studies and he had undertaken studies in the Diploma of Leadership and Management during the gap in studies he would have completed that course and obtained the qualification.

21. Further, the applicant has not explained in the Response what he has done since the completion of the Diploma of Hospitality Management on 18 February 2018.

22. The applicant has been in Australia for more than five years and 11 months; this is a very long period of time to be in Australia and is inconsistent with the stay being temporary.

23. The applicant has changed his career path initially from accounting, to commercial cooking, to hospitality management to now leadership and management. The course that the applicant is undertaking is not necessarily connected to each of the other courses he has completed nor complementary, and together these courses do not on their face lead to a career path or position in employment. 

24. The Tribunal observes that the Diploma of Hospitality Management he has completed and Diploma of Leadership and Management he is studying are management related courses at the same level, which substantially overlap.  The Tribunal notes that the applicant in the Response stated ‘I have few plans related to my study which will help me in my future employment plans. I want to start my business in the same field where I think study can help me’. The statement is general and does not establish how the course he is studying would improve his employment prospects and remuneration in India. Further, when the Diploma of Leadership and Management is considered alongside his current qualifications and experience that he has already obtained in Australia, the Tribunal is not satisfied that the Diploma of Leadership and Management will necessarily improve his employment prospects or remuneration back in India.

25. The Tribunal recognises that it is always important to allow for reasonable changes to career and study pathways.  However, this is not the case where an applicant has merely decided to change careers through undertaking short vocational education training (VET) courses. The Diploma of Leadership and Management is a short VET course. The applicant did not give any explanation as to why he has changed study pathways to a Diploma of Leadership and Management and why he has not undertaken those studies sooner whilst in Australia. In the circumstances, the Tribunal does not accept that it is a reasonable change to his study pathway. 

26. The courses in which the applicant has enrolled in whilst in Australia have all been short VET courses.  The Diploma of Leadership and Management does not represent a progression in his studies having regard to the courses and qualifications that he has completed in Australia.

27. The Tribunal notes that the applicant could have undertaken studies back in India for the purposes of obtaining leadership and management qualifications.  The applicant in the Response has claimed that he wanted to study in Australia because it is a different experience for him, and he was keen to study with some extra material.  Having considered the Response and the applicant’s previous studies, the Tribunal does not accept that the applicant had reasonable motives to undertake such studies in Australia. 

28. The applicant was to commence studying the Diploma of Leadership and Management in April 2020 and the Response does not establish that he has a substantial degree of knowledge about both the course and the education provider. 

29. The applicant has lived in Australia for five years and 11 months and by reason of living here for that period of time, the Tribunal accepts that he has a substantial degree of knowledge about Australia and living here.

30. The applicant has in the Response provided details of employment within Australia. He claims that between April 2016 and September 2017, he worked at a car wash at an annual average salary of $35,000 per annum. Further, between October 2018 and February 2020, he worked as an Uber Driver earning an average annual salary of $40,000 per annum.

31. The income that the applicant has received from his positions in Australia, particularly the Uber driver position, is of a high level, which would provide the applicant with a substantial economic incentive for him to remain in Australia, and not to return to India.

32. The applicant in the Response did not identify what level of income he would earn in his home country from the qualifications he would obtain in Australia.  Considering the level of income he is currently earning and has earned in Australia, there is no doubt that the level of income he would receive in Australia in hospitality is higher than in India.  It is common knowledge that wages in India are lower than those in Australia, which would not present the applicant with a significant incentive to return to India.

33. Further, it is also common knowledge that the economic conditions in Australia are more favourable than those in India, which would also provide him with a significant incentive not to return home to India.

34. The Decision Record and the Response confirm that the applicant has not been out of the country during the course of his stay in Australia.  The fact that he has not left Australia or returned home during his long stay in Australia is consistent with the applicant wishing to remain in Australia rather than wishing to return home to India. 

35. The Response confirms that there are no security or military service commitments or political and civil unrest in his own country which would warrant any concerns about returning home to India.  The Tribunal finds they do not present as a significant incentive for him not to return home.

36. The applicant in the Response stated that he has no assets which would not provide him with an incentive to return home.

37. The applicant in the Response stated that his parents live in India.  The fact that they live in India would ordinarily provide him with an incentive to return home to India. However, he has not returned home to see them in nearly six years.  Notwithstanding, there would appear to be incentive for the applicant to return to India for his parents, and this must be considered in the context of his ties to Australia.  The applicant has lived in Australia for nearly six years and there would appear to be a significant incentive for him to remain in Australia, having regard to the higher levels of income and better economic conditions that exist in Australia as compared with India.

38. Further, the applicant has ties to Australia, including employment, a high level of income and a sister residing in Australia, which would provide him with an incentive to remain in Australia.

39. In light of the applicant being able to reside in Australia for the last five years and 11 months and being able to study during that period with the support of his family, as identified in the Response, the Tribunal accepts that the applicant’s circumstances, including his education and the support of his family, relative to others in his home country, result in him being in a good position, and that this would provide a significant incentive for him to return home to India. 

40. The applicant has in the Response confirmed that he has been refused a visa to a country (including Australia) and that he has made an application for another Australian visa for which a decision has not been made yet. The applicant has not provided details of the refusal and the visa application he has made. The Tribunal has had regard to those matters. 

41. Based on the above matters, the Tribunal is not satisfied that the applicant has made this application to gain a student visa to study temporarily and it considers that the primary objective of the application is to maintain ongoing residence in Australia to remain here permanently. 

42. Further, the applicant has lived in Australia for five years and 11 months and has an unexplained gap of nearly two years in relation to what the applicant has been doing during this time in Australia. Further, the applicant obtained the COE for his current course on the date by which the applicant was to file the Response. It appears that the applicant’s motive to enrol in the Diploma of Leadership and Management and obtain the COE after a gap of two years was solely to maintain a visa to remain in Australia, rather than to study. By reason of the long gap and the other matters set out above, the Tribunal does not accept the applicant is a genuine applicant for entry and stay as a student. 

43. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

44. 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.

45. 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

46. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Michael Biviano
    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 Migrationu 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

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

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

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

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

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.