Singh (Migration)

[2019] AATA 4440

Singh (Migration) [2019] AATA 4440 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravinder Singh

CASE NUMBER:  1801880

HOME AFFAIRS REFERENCE(S):           BCC2017/4335834

MEMBER:Roger Maguire

DATE:9 October 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 09 October 2019 at 11:04am    

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –genuine intention to stay in Australian temporarily – applicant’s circumstances in Pakistan and Australia – long gap in studies – value of studies to applicant’s future – current enrolment – confirmation of enrolment obtained after s 359 response and provided after original Tribunal decision – jurisdictional error – further decision based on current evidence – objective to maintain residence in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359

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

CASE

MIMA v Bhardwaj (2002) 209 CLR 597

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 12 January 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 18 November 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 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 the delegate found that the applicant did not intend to stay temporarily in Australia.

4. On 12 April 2019 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information about the course(s) of study being undertaken, and entry and stay in Australia as a student in writing.

5. On 26 April 2019, the applicant sent a Form M 17 response to a Request for Student Visa Information (“the response”) to the Tribunal consenting to the Tribunal deciding the review without a hearing. In the body of the response, the applicant declared that the information provided was complete and correct, and signed and dated it 16 April 2019. Pages 3, 4, 6, 7, 10, and 11 of the form M17 are missing from what was provided by the applicant. Parts of the form have been left blank, and to the extent information has been provided it is vague and lacking in detail.

6. On 23 July 2019, the applicant obtained a further Confirmation of Enrolment No AC 96A990 in a Bachelor of Business degree to commence on 29 July 2019, and end on 1 July 2022, but failed to promptly notify the Tribunal of this change in circumstance.

7. On 2 September 2019, the Tribunal made a decision affirming the decision under review based upon the correctness of the applicant’s response, which did not disclose a current Confirmation of Enrolment.

8. On 5 September 2019, the applicant wrote to the Tribunal providing a copy of the Confirmation of Enrolment referred to above.

9. In the circumstances, the Tribunal acknowledges that the purported decision of 2 September 2019 was flawed by jurisdictional error, and was not a decision for the purposes of the act: MIMA v Bhardwaj [2002] HCA 11; 209 CLR 597.

10. The Tribunal has therefore decided to make a further decision based on all current evidence.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 applicant for entry and stay as a student.

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

13. 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?

14. 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.

15. 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.

    Applicant’s circumstances in home country.

16. The applicant departed his home country shortly before entering Australia on 7 March 2009, and has lived continuously in Australia since that date, apart from three trips to his home country in 2011, 2012, and 2017, totalling 92 days out of 3868. The applicant is now seeking to extend the duration of his stay in Australia until at least 1 July 2022, which will bring the total duration of his stay in Australia to approximately 13 years and four months, a period which the Tribunal finds is inconsistent with the notion of “temporary” entry and stay. This weighs against the applicant.

17. The applicant is currently enrolled in a Bachelor of Business degree. The applicant has stated to the Tribunal that similar courses are available in his home country, but has provided no satisfactory explanation as to why those courses are not sufficient for his purposes. The Tribunal is not satisfied that the applicant has reasonable reasons for undertaking his current studies in Australia. This weighs against the applicant.

18. The applicant has stated that he has personal property worth $300,000 in his home country, but has provided no documentation to support this claim.

19. As to the applicant’s future plans, in item 26 of the form M 17 the applicant has simply stated “He would like to work in premium construction company in his home country.” In item 27 in response to a query as to the remuneration he expects to receive, the applicant has inserted “$20,000” without providing any further detail or basis for this statement.

20. The Tribunal finds that the applicant’s career objectives are vague and undeveloped.

21. As noted above, pages 3 and 4 of the form M 17 have not been provided to the Tribunal however, in item 8 in section 4 of that form the applicant has referred to “family” in his home country. The Tribunal accepts that the applicant has family living in his home country.

22. The applicant has expressed no concerns about military service commitments or political or civil unrest in his home country, having merely drawn a line through the space provided for a response in item 28.

23. Having regard for the duration of the applicant’s stay in Australia to date, and the small and infrequent number of return visits to his home country, and his stated desire to remain in Australia until at least 1 July 2022, the Tribunal is not satisfied that the applicant has a significant incentive to return to his home country. This weighs against the applicant.

    Applicant’s potential circumstances in Australia.

24. Pages 6 and 7 of the form M 17 have been omitted from the response provided by the applicant. The Tribunal has no current information before it regarding the applicant’s employment history in Australia or his earnings or living expenses.

25. In the form M 17 provided to the Tribunal by the applicant, the applicant disclosed his most recent completed course as being an advanced diploma in building construction, which he completed on 1 October 2018. Information provided by the applicant discloses no enrolment between 1 October 2018 and 23 July 2019, the date of the applicant’s current confirmation of enrolment. The Tribunal finds that a gap in study of approximately 10 months is not consistent with entry and stay as a student. Moreover, it is clear to the Tribunal that on 12 April 2019, when the Tribunal wrote to the applicant, the applicant held no confirmation of enrolment, and only obtained one some three months after that correspondence. In the circumstances of this review, the Tribunal finds that the applicant has obtained his current confirmation of enrolment for the purposes of maintaining residence in Australia. The Tribunal considers that if the applicant was genuine in his desire to pursue his current study, he would have enrolled in it and commenced it well before a period of 10 months had passed. The Tribunal finds that the applicant’s presence in Australia during this 10 month period was motivated by factors other than study. This weighs against the applicant.

26. The Tribunal finds that the applicant is already stayed in Australia too long for his entry to be regarded as “temporary”. For the applicant to now seek to extend his stay until July 2022 only exacerbates this circumstance. The Tribunal finds that the applicant has been, and is proposing to continue, using the student visa program to maintain residence in Australia. The Tribunal gives great weight to this finding.

    Value of course to the applicant’s future.

27. The applicant has already completed the following courses:

    ·Certificate III in Painting and Decorating; (December 2014);

    ·Certificate IV in Building and Construction (April 2016);

    ·Diploma of Building Construction (September 2017);

    ·Advanced Diploma in Building Construction (October 2018).

28. The applicant has not provided the Tribunal with any information as to his anticipated earnings with those qualifications which he currently holds. Neither has the applicant provided the Tribunal with any information so as to enable it to assess what additional value is current course of study brings to his future economic circumstances.

29. The Tribunal is not able to find that the applicant’s current course of study is of any value to the applicant’s future employment prospects beyond incremental. The Tribunal gives little weight to this criterion.

    Applicant’s immigration history.

30. Having regard to the duration of the applicant’s stay in Australia thus far, and the applicant’s stated desire of extending his stay in Australia until at least July 2022, the Tribunal finds that the applicant has been abusing the Student Visa program, and this weighs heavily against the applicant.

    Parental intentions for a minor applicant.

31. There is no minor applicant involved in this review.

    Any other relevant information.

32. There is no other relevant information before the Tribunal.

33. 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).

    Conclusion on cl.500.212

34. 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.

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.

    Roger Maguire
    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.