Singh (Migration)

[2019] AATA 6305

Singh (Migration) [2019] AATA 6305 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhpreet Singh XXX

CASE NUMBER:  1817837

HOME AFFAIRS REFERENCE(S):           BCC2018/1782620

MEMBER:Elizabeth Tueno

DATE:26 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2019 at 12:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine intention to stay temporarily – value of course to applicant’s future – study at lower level and in different subject area than in home country – job offer in home country not genuine – no strong ties to home country – use of visa program to maintain ongoing residence – intention to gain work experience in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 31 May 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 23 April 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were concerned the applicant was using the visa program to maintain ongoing residence, that he was motivated to remain in Australia by factors other than study and that his ties to India did not represent a significant incentive to return to India.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was assisted in relation to the review by their 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 intends genuinely to stay in Australia temporarily.

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. The Tribunal has had regard to the applicant’s oral evidence given at the hearing, the Department’s file as well as documentation provided by the applicant prior to the hearing including:

    ·Confirmation of enrolment

    ·Australian and overseas qualifications

    ·Genuine temporary entrant statement by the applicant

    ·Letter with offer of employment

    ·Course progress letter

    ·Completed s.359 questionnaire

12. The applicant is a 27 year old Indian national.  He arrived in Australia on 5 February 2018 on a visitor’s visa, which remained valid until 8 August 2018.  In April 2018, he applied for a student visa.  In that same month, he commenced a Certificate III in Light Vehicle Mechanical Technology course, which he completed in April 2019.  He then enrolled in a Diploma of Automotive Management but did not complete the course.  In his evidence at the hearing, he stated this was because he did not like the teaching at that college.  He is currently studying a second Diploma of Automotive Management, having commenced the course in July 2019 and is expected to complete it in July 2020.

    VALUE OF THE COURSE

13. The applicant stated that prior to coming to Australia, he had studied an art and craft diploma and then a bachelor of commerce in India.  He began work as a teacher at a high school teaching art and craft.  He said that he earnt a good income (10,000 rupees per month) as a teacher but his dream was to modify cars.  He said that he realised he could fulfil this dream after he arrived in Australia on the tourist visa. 

14. He said that he wants to return to India to work at Swani Motors as a mechanic and as a customer service representative.  He said that he had spoken with a friend in India, who is the manager at Swani Motors and he offered him a job.  This was evidenced by a letter 19 October 2019.  The letter states:

    “Its are [sic] good pleasure to inform you that your resume has been selected for the position of customer relationship services manager your resume [sic] meets our requirements and we are glad to hire you on this position.  We are going to hire 62 candidates in August 2021 for the position of mechanic and customer services.  The sazuki company is the best manufacturing car company in India.  The company is recruiting the candidates from our office in Nakodar area.  As you mentioned in your resume that you are studying in Australia, once you finish your study and gain experience from Australia you can come here and join our company. 

    a)Your total cost company salary will be 715884/ INR per annual [sic]

    b)You will be entitle [sic] to leave and other fringle [sic] benefits as per the rules of the company that maybe in effect from time to time.

15. When the Tribunal asked if he would need to do further study, the applicant stated that he if needs to, he’ll do it.  The Tribunal notes that the Diploma course bears no relevance to his previous studies or work in India, although the Tribunal accepts that people’s interests in work and study do change over time.

16. The Tribunal has some concerns about the value of the course for the applicant’s future.  First of all, studying at a Certificate III and Diploma level is well below the Bachelor degree in commerce the applicant had already attained prior to coming to Australia.  Second, the letter of offer is not contingent upon him completing his studies in Australia.  It is also refers to him finishing his studies and gaining experience in Australia.  The Tribunal considers this to be referring to gaining work experience in Australia.  The Tribunal also considers that the salary offered is for just the customer relationship services manager position and does not require the applicant to undertake further studies for this position.  This is because the offer is based on the applicant’s current resume, which includes the completed Certificate III in Light Vehicle Mechanical Technology.  It is also not apparent that the mechanics role requires the completion of the Diploma in Automotive Management. 

17. It seems too convenient that the applicant’s friend has offered a job in October 2019 that the applicant will not be able to commence until after July 2020.  Also convenient is the timing of the hiring of “62 candidates” in August 2020, only 1 month after the applicant is due to finish is course.

18. For the above reasons, the Tribunal is of the view that the job offer is not a genuine offer.  Furthermore, the applicant has not explained to the Tribunal exactly how the Diploma of Automotive Management will assist him in finding work in his home country, having already completed the Certificate III course.  In his genuine temporary entrant statement, he says “having studied in Australia will give extra-ordinary skills over Indian qualified graduates”, however the Tribunal considers this to be a generalised comment and does not explain why he needs to undertake further study in Australia in order to work as a mechanic in India.

19. While the letter of offer does appear to be more generous that what the applicant was previously earning as a teacher, given the concerns the Tribunal has over the genuineness of this job offer, it is difficult to accept this salary offer without further evidence of what a mechanic and customer sales representative in India would earn on average. 

20. The applicant stated he does not work in Australia and is supported by his family.  Given what the job offer letter implies, it appears the applicant does have an intention to gain mechanical work experience in Australia, despite his stated intention to the Tribunal that he intends to return to India after his studies.  This is also implied in his responses in his questionnaire, where he states “once I finish my studies and gain enough experience I will go back”.  This statement also carries with it an implied intention to gain work experience in Australia after completing his studies”, which in turn shows a lack of a genuine intention to stay in Australia temporarily for the purpose of studying.

    CIRCUMSTANCES IN THE APPLICANT’S HOME COUNTRY

21. The applicant’s reasons for wanting to study in Australia rather than in India are, “I found Education from Australia has better scope to Grow within big Companies.  If I study same course from home country, it doesn’t have same recognise same as Study from Australia.  I can find better job opportunity and extra benefits if I study from Australia.  Australia has high quality education, better reputation and culture diversity.  Institutes in Australia offer a wide variety of courses and they are based on scientific research, while study in Australia, I Can work on my English skill.  More over Australia provides incredible work experience” [sic].

22. The Tribunal does not accept this explanation for a couple of reasons.  First, the applicant successfully completed his tertiary studies in India and found work as a teacher.  This did not require studying in Australia.  Second, the fact that the applicant refers to the “incredible work experience” available in Australia confirms that Tribunal’s belief that the applicant does not genuinely intends to stay in Australia temporarily for the purpose of study.  He also intends to secure work experience. 

23. Other than his brother in Australia, the remainder of the applicant’s family lives in India.  This includes his mother, father, sister and brother in law.  He said he is contact with them by mobile phone, Skype, WhatsApp and Facetime.  Since arriving in Australia, the applicant has not gone offshore.  This demonstrates that he is capable of maintaining family ties whilst in Australia but it does not represent a strong tie to his home country. 

24. The applicant stated that he owns a residential house in India (valued at approximately AUS $100,000) and that his parents are currently living in the house.  The fact that his real estate is being looked after and being used by his family does not present as a particular strong tie to his home country.  However, his economic circumstances are not such that he has a significant incentive not to return home.  He is currently being financially supported by his family and does not work in Australia and the Tribunal does not consider the applicant’s father to financially support him indefinitely.

25. The applicant confirmed that he has no military service requirement in India, nor is there any civil or political unrest in his home country. 

    CIRCUMSTANCES IN AUSTRALIA

26. The applicant has a brother in Australia, who moved here in 2007.  He stated his brother came to Australia as a student of cookery and is now an Australian citizen.  He claimed that he is not in regular contact with his brother and that the last time he saw his brother was two months ago when they had to discuss a family matter about their mother being unwell.  However, in his genuine temporary entrant statement, he said that he came to Australia on the tourist visa to meet his brother (and for tourism).  These two pieces of evidence are at odds with each other.  The applicant gave no evidence about having had a fall out with his brother, nor did he say that he was not close to him.  Based on the applicant’s statement that visiting his brother was one of the two reasons for him to visit Australia in the first place, the Tribunal considers it likely that having a family member in Australia means that the applicant has strong incentive to remain in here.  This is particularly the case when the applicant’s brother arrived in Australia for the purpose of study and is not an Australian citizen.

27. The applicant stated that when he is not studying, he searches for new cars on the internet and how they can be modified.  He said he lives by himself, does not work and does not own a car. He is supported financially by his father. 

28. The applicant states that he has no ties to the community in Australia.  Despite this, the Tribunal considers the applicant is using the visa program to circumvent the intentions of the migration program and that he is using the student visa to maintain ongoing residence.  The Tribunal makes this finding based on the value of the course as outline above, the concerns it has about the applicant’s intentions to gain work experience in Australia after completing his studies and also the fact that he has a family member in Australia who arrived on a student visa and is now an Australian citizen. 

    OTHER MATTERS

29. The applicant has previously travelled to Australia in 2015 on a visitor’s visa.  He said he was a student at the time.  He confirmed that he has no other visa applications pending, nor has he ever been refused a visa to Australia or any other country.    

30. The applicant did not raise any other relevant matters to be considered.

31. 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).

32. 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

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

    Elizabeth Tueno
    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.