Singh (Migration)

[2019] AATA 6915

Singh (Migration) [2019] AATA 6915 (16 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Singh

CASE NUMBER:  1725542

HOME AFFAIRS REFERENCE(S):          BCC2017/2971899

MEMBER:Jens Streit

DATE:16 December 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 16 December 2019 at 4:11pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – enrolment in higher-level course cancelled after change to lower levels – no notification to department – new visa application made to study in different subject area – vague plans for future business – working in Australia and no return to home country during stay – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, Condition 8516

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 Immigration and Border Protection on 10 October 2017 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 18 August 2017. 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 visas on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intended a temporary stay in Australia as a student.

4. The applicant appeared before the Tribunal on 17 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was assisted in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary entrant.

8. 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?

9. 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.

10. 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.

11. At the time of lodging the application for review, the applicant provided the Tribunal with a copy of the delegate’s decision record refusing to grant him a student visa.

12. In terms of the evidence, the Tribunal has had regard to the applicant’s oral testimony, the Departmental file, the Tribunal file and the documentation provided by the applicant to the Tribunal.

13. In particular, the Tribunal notes the applicant provided a detailed response to the Tribunal’s ‘Request for Student Visa Information’ form, including attaching 14 documents for the Tribunal’s consideration.  The Tribunal also notes the applicant has provided an eight page submission addressing various matters for the Tribunal’s consideration.

14. The applicant is a 26-year-old Indian national.  The applicant arrived in Australia on 17 June 2014 holding a TU573 student visa that was granted offshore on the basis of the applicant’s enrolment in a Bachelor of Business at Queensland University of Technology.

15. The delegate’s decision record notes that the applicant only studied three months of his English Language Intensive Course for Overseas Students before changing to lower Vocational Education and Training (VET) courses in business and management. As a consequence the applicant’s enrolment in a Bachelor of Business was cancelled by the Queensland University of Technology on 1 October 2014.

16. During the period June 2014 to August 2017, the applicant’s enrolments, including courses completed or cancelled were as follows:

    ·English for Academic Purposes Two (finished September 2014);

    ·University Diploma of Business (cancelled October 2014);

    ·University Bachelor of Business (cancelled October 2014);

    ·Certificate IV in Business (started October 2014 and finished April 2015);

    ·Diploma of Management (started May 2015 and finished November 2015);

    ·Advanced Diploma of Management (cancelled March 2016);

    ·Advanced Diploma of Leadership and Management (started March 2016 and finished June 2017); and

    ·Certificate IV in Commercial Cookery (started June 2017).

17. On 18 August 2017, the applicant applied for a Student (Temporary) (Class TU) Student (Subclass 500) visa to study the following:

    ·Certificate IV in Commercial Cookery (June 2017 to November 2018); and

    ·Diploma of Hospitality Management (January 2019 to July 2019).

18. In the period between the delegate’s decision and the hearing before the Tribunal, the applicant was enrolled in, or had successfully completed, the following courses.

    ·Certificate IV in Commercial Cookery (completed November 2018); and

    ·Diploma of Hospitality Management (studying).

19. In completing all of the above course enrolments, the applicant’s expected time living and studying in Australia is just over five years.

20. In terms of circumstances in his home country, the applicant gave evidence that he does not own any property in India. In the applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form, the applicant identifies two significant assets as being his property. In response to questions by the Tribunal, the applicant clarified that the two significant assets were owned by his parents. The applicant gave evidence that he is the heir to his parents’ assets in India, in other words that he will inherit his parents’ property. The Tribunal notes there is no corroborative evidence from the applicant’s parents that the applicant will inherit their estate.

21. The applicant gave evidence that he is not required to undertake military service in India and there is no civil or political unrest in India that would prevent the applicant returning to live and work in India.

22. The applicant told the Tribunal that his family, comprising his father, mother, brother and sister, all live in India. The applicant asserted that he maintains contact with his family through video calls and that he has a strong relationship with his family.

23. The applicant gave evidence that he had made arrangements to return to India at the end of his course. In response to a question from the Tribunal, the applicant stated that he had not booked a flight back to India.

24. The Tribunal notes that since arriving in Australia on 17 June 2014, the applicant has not travelled back to India to visit his family. At the time of the hearing the applicant had been in Australia nearly five years. The applicant gave evidence that he did not return to India to visit his family because of his studies.  

25. The Tribunal notes the applicant’s employment history as contained in the applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form. The applicant’s employment history reflects that the applicant devoted time out of his study to work but did not devote any time out of his study to visit his family. In the circumstances, the Tribunal does not accept the applicant’s evidence as to having a strong relationship with his family and that the reason why he has not travelled to India to visit his family in nearly five years was due to his studies.

26. Having regard to the evidence, the Tribunal considers that the applicant’s family and financial circumstances in India do not provide an incentive for the applicant to return to work and live in India that outweighs the incentive for the applicant to remain living in Australia.

27. The applicant does not own any property in Australia and at the time of the hearing he lived with a friend in a rental property in Zillmere, Queensland.

28. The applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form and his oral testimony, reflects that since arriving in Australia the applicant has been employed initially working in a car wash and then in a restaurant as a chef. During the period July 2017 to June 2018 the applicant earned $20,800 working in a restaurant as a chef.

29. The Tribunal notes the letter from the applicant’s current employer dated 3 April 2019 reflects that the applicant has been employed as a chef on a permanent part time basis since 1 July 2017, working 20 hours per week.  The Tribunal also notes that the applicant’s estimated annual living expenses is $12,600 as contained in the applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form.

30. As mentioned above, the applicant has not returned to visit family in India since first arriving in Australia in June 2014. The Tribunal understands that the applicant has worked in order to provide money to live while studying in Australia. That said, the Tribunal considers that the applicant’s failure to return to visit family in India for nearly five years, whilst continuing to work in Australia, reflects that the applicant’s family being in India does not provide him a significant incentive to return to live and work in India.

31. Having regard to the evidence, the Tribunal considers that the applicant’s circumstances in Australia do not provide an incentive for the applicant to return to work and live in India that outweighs the incentive for the applicant to remain living in Australia.

32. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant the contents of the Provider Registration International Student Management System (PRISMS) record database. The Tribunal provided the applicant with a copy of the PRISMS enrolment record. The Tribunal explained the consequences of relying upon the information. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing.

33. The applicant gave evidence that when he finishes his study he will go back to India.

34. The applicant gave evidence that he plans to return to India and open a restaurant near an airport.  The applicant estimates earning AU$10,000 per month running his restaurant. There is no evidence before the Tribunal to support the applicant’s income estimation. There is no evidence before the Tribunal setting out the details of the applicant’s plan to open a restaurant. The Tribunal considers the applicant’s plan to open a restaurant at some point in the future is in a loose conceptual format and is aspirational.

35. Having regard to the evidence, the Tribunal was not satisfied by the applicant’s reasons as to the value of studying a Diploma of Hospitality Management in Australia in respect of the applicant’s future plans to open a restaurant.

36. The applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form, and in particular the applicant’s statement, reflects that his reasons for not studying in India centred on challenges in being accepted into courses in India and a desire to study in Australia. When asked why he was not able to do a Diploma of Hospitality Management in India, the applicant told the Tribunal to the effect that in India a Diploma of Hospitality Management would be very hard to do, and so the applicant chose to do a Diploma of Hospitality Management in Australia.

37. There was no other evidence before the Tribunal to support the applicant’s assertions about the difficulty in being accepted into courses in India. There was no evidence before the Tribunal that the applicant had attempted and been unsuccessful in enrolling in a Diploma of Hospitality Management or equivalent in India. In the circumstances the Tribunal is not persuaded by the applicant’s evidence as to his difficulties in undertaking a Diploma of Hospitality in India.

38. The applicant’s response to the Tribunal’s ‘Request for Student Visa Information’ form reflects that, since arriving in Australia on 17 June 2014 and at the time of the hearing, the applicant had not departed Australia to India or any other country.  Accordingly at the time of the hearing the applicant had been in Australia for nearly five years.

39. The delegate’s decision record reflects that the applicant did not contact the Department to seek permission to change his Bachelor course to VET courses, which in the delegate’s view was a breach of visa condition 8516 (maintain eligibility).

40. During the course of his evidence, the applicant accepted that he did not inform the Department of his proposed course change from studying for a Bachelor of Business to studying VET courses. He also accepted that he had breached a condition of his visa in changing his study to VET courses.

41. The applicant came to Australia to study a Bachelor of Business. The applicant told the Tribunal that he changed his study to VET courses as he found studying for a Bachelor of Business was very hard and so he changed courses. When asked why he didn’t inform the Department about changing his study to VET courses, the applicant initially gave evidence that he didn’t tell the Department because he forgot to do so.

42. In response to a question from the Tribunal as to whether he was worried that if he told the Department about changing from a Bachelor of Business to VET courses, he would lose his student visa, the applicant said ‘yes’.

43. The Tribunal recognises the importance of allowing for reasonable changes to career and study pathways. However, the applicant’s decision to not inform the Department about changing his study to VET courses is a cause of concern to the Tribunal.

44. Having regard to the evidence, the Tribunal finds that the applicant breached visa condition 8516 in changing his study to VET courses. The Tribunal finds that the applicant did not inform the Department to the effect that he had changed his study to VET courses because the applicant was worried the Department would not permit the applicant to stay in Australia and study the VET courses.

45. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. Weighing up the above matters, the Tribunal considers that the applicant is using the student visa program primarily to maintain ongoing residence Australia.

46. 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).

47. 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

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

    Jens Streit
    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.