Singh (Migration)

[2020] AATA 2749

Singh (Migration) [2020] AATA 2749 (22 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Gurveer Singh

CASE NUMBER:  1836408

HOME AFFAIRS REFERENCE(S):          BCC2018/3197017

MEMBER:Adrienne Millbank

DATE:22 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 22 April 2020 at 1:08pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – secondary applicant child remaining with mother in Australia – genuine temporary entrant – applicant plans for schooling in Australia – mother’s limited academic progress – mother having a further child in Australia without family support – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 500.212, 500.312

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 22 November 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 was born in 2014 and is five and three-quarter years old at the time of decision. He is a secondary applicant. His mother, the primary visa holder (the visa holder), was granted a Student (Subclass 500) visa on 1 August 2018. In this application she listed the applicant and her husband, the applicant’s father, as non-migrating family members.  

3. On 24 August 2018 the applicant and his father lodged applications for Student (Subclass 500) visas as secondary applicants. The applicant’s father was overseas at the time and has no review rights. The applicant was in Australia, on a visitor visa.

4. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa as a dependent of his mother in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

5. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant was a genuine temporary entrant.

6. The delegate noted that the visa holder, in her own visa application, had declared that her husband would be remaining in the United Arab Emirates (UAE) and that the income from his employment and their business would fund her stay in Australia. She had further declared that the applicant, who was in Australia with her at the time of application, would be returning to India to stay with her parents for the next couple of years. The delegate noted that 23 days after the visa holder’s visa was granted, the applicant’s father lodged the applications for him and his son to join her in Australia.

7. The delegate considered that if the visas were granted, the entire family unit would be in Australia. The delegate further considered that the applicant had not demonstrated any significant incentives to depart Australia at the end of the proposed stay. Given the inconsistent information provided in the visa holder’s application and this application, as well as the absence of any significant incentives to depart at the end of the proposed stay, the delegate was not satisfied that the applicant satisfied the genuine temporary entrant criteria.

8. A copy of the delegate’s decision was provided to the Tribunal by the visa holder.

9. The Tribunal exercised its discretion to hold the hearing by telephone, and the visa holder appeared before the Tribunal by phone on 9 April 2020 to give evidence and present arguments.

10. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

11. As the applicant is a minor and his mother acted as his representative at hearing, the Tribunal treated the visa holder’s actions as the applicant’s actions. The visa holder did not raise any concerns in relation to holding a telephone hearing, and the Tribunal is satisfied that she was given a fair opportunity to give evidence and present arguments.

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

13. The applicant was assisted in relation to the review by the registered migration agent, who did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

16. Clause 500.312(a) requires as follows:

    The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

17. 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.

18. 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.

19. Regarding the visa holder’s own Student (Subclass 500) visa application as addressed in the decision record, the Tribunal asked her at hearing why she did not include her husband and son as secondary applicants. The visa holder stated that she was visiting Australia with the applicant when she decided to stay as a student. She claimed that she realised only after she was granted the visa that the applicant needed to stay with her, and that she needed her husband with her because ‘it was hard on my own’.

20. The visa holder advised the Tribunal that she has three children: an older son who lives in India with her parents; the applicant, her second son; and a daughter born in Australia in January 2019. She stated that her oldest son has bonded with her mother in India, but her second son has bonded with her and for this reason can’t be separated from her. She stated that the applicant wept when she told him he might have to go back to India. She stated that the applicant is going to school, a state public school, where he is in preparatory year, and that he has an illness for which he is receiving ongoing medical treatment. She argued that her two youngest children as siblings should stay together, in Australia, with her. She stated that she has advised the Department about the birth of her daughter.

21. The Tribunal asked the visa holder about her husband’s whereabouts, and whether he has lodged subsequent visa applications. The visa holder stated that her husband is in India, having extended a visit to their home country because of the coronavirus situation. She stated that he intends to return to the UAE to attend to their business in Dubai when travel restrictions are lifted. She stated that her husband applied for a visitor visa, and lodged another application for a student visa, in 2019, but these applications were refused. She claimed that her husband’s intentions were not to stay with her and the applicant for the duration of her studies, but to ‘come and go’ between the UAE and Australia.

22. The Tribunal asked the visa holder about her and her husband’s intentions, and her intentions regarding the applicant. The Tribunal asked the visa holder specifically where she and her husband intend to live and work. The visa holder stated that she intends to stay in Australia and finish her studies, and that she wants her son (the applicant) ‘to stay here and study here’. She then claimed she is a genuine temporary entrant; that she intends to stay in Australia only to complete her business-related courses; and that she will on the completion of her studies in Australia return to live and work in Dubai. She stated that she does the paperwork for the business managed by her husband, and that the business employs people and deals in glass and aluminium products.

23. The Tribunal accepts that the presence of the visa holder’s oldest son, and her parents, in India provides some incentive for her to return to that country. The Tribunal notes however that she stated that her oldest son has bonded with her mother rather than with her, and that it is her intention to return, on completion of her studies, to the UAE rather than to India. For these reasons, the Tribunal gives only little weight to the presence of visa holder’s son and parents in India as an incentive for her and the applicant to return to that country.

24. Following the procedures of s.359AA of the Act, the Tribunal advised the visa holder that it had information that would be the reason or a part of the reason, subject to her comments in response, for affirming the decision under review. The Tribunal advised that this information was in her Provider Registration and International Student Management System (PRISMS) records, and that it was relevant because it showed most of her enrolments have been cancelled and she has completed none of her enrolled courses. Her study record therefore raised concerns that she was not a genuine student, and that she was using the student visa system to circumvent the intentions of the migration program and to maintain her and the applicant’s residence in Australia. The visa holder was advised that she could seek extra time and consult with her representative before responding to the information and the Tribunal’s concerns.

25. The visa holder did not seek extra time. She advised, and the Tribunal accepts, that she did not attend her Diploma of Leadership and Management course classes in 2018 and 2019 because she was having a baby. She advised, and the Tribunal accepts, that she has not been able to attend classes this year because of the coronavirus. The Tribunal acknowledges there are reasons why the visa holder has not attended classes in 2018, 2019 or 2020, but nevertheless finds the fact that the visa holder has remained in Australia without studying to indicate that she has not and does not intend to stay in Australia temporarily.

26. The Tribunal asked the visa holder why she indicated when she applied for her visa (as set down in the decision record) that she intended to enrol in a certificate-level course in cookery, which was not related to her claimed intention to improve her business skills. The visa holder stated that she had no intention to study cookery, but her agent provided this information because ‘that is what everyone switches to’. She stated, as noted, that she intends to complete a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management, and that after she completes her studies in Australia she will return to work in the business in Dubai.

27. The Tribunal asked the visa holder why she chose, after she had lodged her student visa application, to have another child, at a time she claimed to intend to travel and remain temporarily in Australia for employment-related study purposes. The visa holder claimed that she didn’t realise she was pregnant when the visa was granted. The Tribunal asked the primary visa holder why, when she did realise she was pregnant, she didn’t cancel or indefinitely defer her study plans and return to India or the UAE to be with her husband and family while having another baby, rather than remaining with the applicant in Australia without family support, and without studying.

28. The visa holder claimed that she suffered from travel sickness and didn’t want to fly while pregnant or with a young baby. The Tribunal found the primary visa holder’s explanations as to why she had a third child in Australia without family support, and why she has remained in Australia after she learned she was pregnant, and after she realised she could not attend to her studies, weak and unconvincing. The Tribunal considers that the visa holder and her husband’s intentions have been to maintain residence in Australia, and that they have intended to use the student visa program for this purpose.

29. No claim was made or evidence provided to the Tribunal that the visa holder needs the qualifications of Diploma of Leadership and Management, and Advanced Diploma of Leadership and Management, in order to obtain employment in India or in the UAE. As noted, the visa holder claimed it is her intention return to work in the family business in Dubai. Indeed, the visa holder advised the Tribunal that she is still performing, via the internet, her role of managing the paperwork for the business. No arguments were made or evidence provided as to how an Australian qualification in Leadership and Management might progress the business or enhance the primary visa holder and family’s income and future prospects in India or the UAE.

30. No evidence was provided regarding the visa holder’s or the visa holder’s husband’s income from the business in the UAE, and the fact that the primary visa holder’s husband has applied to join her in Australia indicates that the business is not an incentive for the visa applicant’s parents to return to live in that country. The Tribunal does not accept that the visa holder’s husband’s intentions when he applied for visitor and student visas in 2018 and 2019 were that he would ‘come and go’ between the UAE and Australia. The Tribunal considers that with his wife and two youngest children in Australia, the incentive would be for him to remain in this country.

31. The circumstances of the applicant are that he was brought, at a very young age, to Australia by his mother. As discussed above, the visa holder stated that the applicant wants to stay in Australia because he is attending school here and receiving medical treatment here, and because he wants to stay with her. She indicated that her intention and desire is that the applicant remains and attends school, and receives medical treatment, in Australia. She argued that the applicant needs to stay in Australia to be with his sister, her daughter who was born in Australia. The Tribunal finds these arguments to indicate that the visa holder does not intend for the applicant to stay temporarily in Australia.

32. There is no information before the Tribunal to indicate that the visa holder’s parents have military service commitments in India, or that the applicant and his family are fearful of returning to India because of political or civil unrest in that country. In the circumstances where the applicant is five and three-quarter years old, and the visa holder stated her intention of returning to live in the UAE on completion of her studies, the Tribunal gives no weight to these considerations.

33. Having considered the evidence, arguments and circumstances of the applicant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl.500.312(a).

34. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa as required by cl.500.312.

35. 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

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

    Adrienne Millbank
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton
    Minister for Immigration and Border Protection

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

    Part 1 of Direction No.69 - Preliminary

    Name of Direction

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

    It may be cited as Direction No.69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

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

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

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

    Regulations mean the Migration Regulations 1994.

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

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

    Student visa means a Subclass 500 (Student) visa

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

    Application

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

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

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

    Preamble

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

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

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

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

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

    d.any other relevant matter.

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

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

    Part 2 of Direction No.69 - Directions

    Assessing the genuine temporary entrant criterion

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

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

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

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

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

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

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

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

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

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

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

    The applicant’s circumstances

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

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

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

    The applicant’s circumstances in their home country

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

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

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

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

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

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

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

    The applicant’s potential circumstances in Australia

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

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

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

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

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

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

    Value of the course to the applicant’s future

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

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

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

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

    The applicant's immigration history

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

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

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

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

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

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

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

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

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

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

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

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

    Any other relevant matters

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