Singh (Migration)

[2019] AATA 4034

Singh (Migration) [2019] AATA 4034 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harmandeep Singh
Miss Samreet Kaur Chohan
Mrs Manprit Kaur

CASE NUMBER:  1810385

HOME AFFAIRS REFERENCE(S):          BCC2018/889176

MEMBER:D. Triaca

DATE:19 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 19 September 2019 at 5:48pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no response to s 359(2) invitation – not entitled to appear before the Tribunal – genuine temporary entrant – plans for the future – vague and imprecise – value of course – inconsistent with level of education – income disparity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 March 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 February 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

   REQUEST FOR STUDENT VISA INFORMATION

4. The Tribunal formally wrote to the applicant pursuant to section 359(2) of the Act inviting the applicants to provide further information to the Tribunal on 17 July 2019. The invitation advised that, if the information was not provided in writing by the prescribed period, being 31 July 2019, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The Tribunal is satisfied that the applicant was properly sent an invitation to provide further information under section 359(2) of the Act. The invitation was sent to the applicants’ nominated address, being the address provided by the review applicants in connection with this application for review.

6. On 31 July 2019 the applicant responded in writing to the Tribunal’s request (359 Response) and consented to the Tribunal deciding the review without a hearing.

7. In these circumstances, the applicant is not entitled to appear before the Tribunal: Section 360(3). Crucially, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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

9. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department as well as information that may be discerned from the delegate’s decision itself. A copy of the delegate’s decision was provided to the Tribunal with the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

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

12. 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?

13. 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.

14. 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.

15. The main applicant (the applicant) is a 30 year old citizen of India. There are two secondary applicants being the applicant’s Partner Mrs Manprit Kaur and the applicant’s daughter Samreet Kaur Shohan born 21 December 2017 (the Secondary Applicants).

16. The applicant first arrived in Australia on 7 August 2013 on a student visa. He has lived in Australia since that time, returning to his home country once for a 12 day holiday in 2015. When his original student visa ceased in 2015, he applied for and received a 12 month extension to 2016. In February 2016 he was granted a temporary graduate visa that ceased in February 2018. He has remained in Australia on a bridging visa since that time.

17. On 24 February 2018 the applicant applied for a student visa. On 27 March 2018 the delegate of the Department refused the application (delegate’s decision). On 13 April 2018, the applicant lodged an application to review the delegate’s decision with the Tribunal and provided the Tribunal with a copy of the delegate’s decision.

18. The Tribunal has read and had regard to information provided by the applicant to the Department and the Tribunal including Application for a Student Visa 24 February 2018 (df 1 – 21); Applicant’s identity evidence passport extract; Certificate of overseas student Health Cover; Marriage Certificate; Passport of Secondary Applicant; Certificate of Overseas Health Cover for Secondary Applicant and Marriage Certificate; Evidence of Bridging Visa (df 32-37); Delegate’s Decision (df 46 – 59).

19. The Tribunal has read and had regard to the applicant’s document entitled Request for Student Visa (Subclass 500) (GTE Statement) (undated) and the applicant’s 359 Response dated 31 July 2019.

20. The applicant provided the Tribunal with two Confirmation of Enrolment documents (CoE) being a CoE for a Diploma of Leadership and Management at Gem Institute commencing 27 January 2018 and ending on 24 February 2019 and an Advanced Diploma of Leadership and Management at Gem Institute commencing on 1 March 2019 due to conclude on 15 March 2020.

21. The applicant‘s GTE Statement states that he has completed the Diploma of Leadership and Management at Gem Institute and is currently studying the Advanced Diploma of Leadership and Management at that institution. By his GTE statement, he confirms that his intention, upon completing his studies, is to return to India and commence a “successful IT business with a presence on every corner of the world.”  Overall, the Tribunal considers the applicant’s claims in relation to the future to be vague and imprecise.

22. He says that he has worked for Telstra in IT Support but realised he lacked leadership and management skills so commenced the Diploma and Advanced Diploma at Gem Institute and he sets out the benefits of the course and the institute. He says the teaching methodology is very practical and can be applied immediately. He states his course will bridge his “skills gap” and ready him to “start my own IT company in India and expand it to become a global IT giant like TCS, Infosys or Wipro.”

23. He states further that the benefits of studying in Melbourne include that he is now used to the Melbourne culture and practical teaching not available in his home country. He discounted options to study in the USA due to racism and the political climate and Canada due to the cold weather.

24. Prior to arriving in Australia, the applicant had completed a Diploma in Business Administration in 2006 and a Bachelor of Arts from Guru Nanak Dev University in 2012. He arrived in Australia and enrolled in a Master of Business Administration at Federation University and a Master of Commerce also at Federation University. In his 359 Response he states that he did not complete the MBA and did not start the Master of Commerce. There is no evidence before the Tribunal in relation to any academic progress in the MBA course.

25. In 2014 the applicant commenced a Master of Information Systems at Federation University which he completed in March 2016. He states he undertook a “professional year” between January 2016 and February 2017. He commenced the Diploma of Leadership and Management in January 2018 and after completing that course in February 2019 he commenced the Advanced Diploma of Leadership and Management which he continues to study.

26. The applicant appears well qualified to find employment, holding University level qualifications from both Australia and India. By his 359 Response, he lists a solid work history commencing as a security guard in May 2016 and then as a truck driver from April 2017 until April 2019. In his GTE Statement he says he worked as an IT support officer at Telstra. There is no evidence provided as to why he would not be able to find employment in his home country with his current qualifications and work experience.

27. The applicant has completed a Diploma of Leadership. There is no explanation provided as to how completion of an Advanced course in Leadership will put him in a better position to find employment or increased remuneration and as such, the Tribunal does not accept there is any real value in his current course of study.

28. The Tribunal does not consider the applicant’s current course of study is consistent with his current level of education noting that the applicant holds University level qualifications from two separate Universities. The Advanced Diploma of Leadership and Management is in fact, at a level below her previous studies in Australia and her home country.

29. The Tribunal also notes the applicant’s purpose of returning to his home country to start a large IT business. It is not apparent how the advanced diploma of leadership will assist him in doing so in any real sense and the Tribunal considers the applicant’s GTE Statement does not explain how the advanced course is likely to assist him in operating a large IT business of the nature described by the applicant.

30. There is no evidence before the Tribunal in relation to what remuneration the applicant anticipates he could receive in his home country using his Advanced Diploma of Leadership compared to what he can receive in Australia.

31. The Tribunal does not consider the applicant has advanced reasonable reasons for not studying in his home country. In his GTE statement he did not address the availability of an Advanced Diploma of Leadership or equivalent in India. He expressed a preference to studying in Melbourne due to the culture, Melbourne being the most liveable city and the practical way of teaching offered by Gem Institute. The Tribunal considers the applicant has only offered vague assertions rather than reasonable reasons for not studying in his home country.

32. In his 359 Response, the applicant’s family are stated to be his Wife and Daughter, who reside in Australia and are Secondary Applicants.  He says his parents, sister and brother who reside in India. He last saw his Indian relatives in January 2015. He says he speaks to his parents daily and his siblings twice a week via video call. He says that he used to do volunteer service in Gurudwara (Holy Temple of Sikh) when in India. Having regard to the fact the applicant has lived in Australia since 2013, has a Wife and daughter who intend to remain with him in Australia, has returned to his home country only once and is seeking to extend time in Australia, the Tribunal does not consider the applicant’s ties to his home country operate as a significant incentive to return home.

33. The applicant’s wife and child reside in Australia with him. The applicant says he attends the Sikh temple in Australia every month. The Tribunal considers the applicant’s family in Australia operates as a strong incentive for him to remain in Australia.

34. The applicant has provided no evidence in relation to his economic ties to his home country. He says that his parents would provide him with “seed capital” for his IT business. However he has not provided any evidence of any arrangement or explained why this potential would act as an incentive to return home.

35. The applicant’s economic circumstances in Australia are well set out in the sense he has worked consistently in Australia since 2016 as a security guard and as a truck driver. This work history is set out in his 359 Response. He indicated that he is earned a salary to $52,481 as a truck driver for Tristaff Recruitment commencing in August 2018. In his GTE Statement he says he worked in IT Support for Telstra, however he has not referred to this in his 359 Response.

36. It is a matter of common knowledge that there is an economic disparity between Australia and India. The Tribunal also notes that the United Nations Human Development Index ranks India at 130^th as a country of medium human development compared with Australia which is ranked third and considered a country with very high human development.[1]In these circumstances and having regard to the applicant’s consistent work history and capacity to earn income in Australian dollars from ordinary work, the Tribunal finds the applicants AUD earning capacity here presents a significant incentive for him not to return to India.

    [1] United Nations Human Development Index 2018

37. The applicant states and the Tribunal accepts that he has no concerns in relation to any potential military service commitments in his home country.

38. The applicant states and the Tribunal accepts that he holds no concerns in relation to any civil or political unrest in his home country that may induce him to remain indefinitely in Australia.

39. There is no evidence before the Tribunal in relation to the applicant’s circumstances in his home country relative to the circumstances of others there.

40. The applicant has not declared any immigration history outside Australia and India and the Tribunal does not make any adverse findings in respect of the applicant’s immigration history.

41. The Tribunal notes that delegate’s decision indicated that the delegate considered the applicant had not been candid in his application responses. However, the Tribunal does not consider that the evidence is such that it supports any adverse finding against the applicant in respect of any lack of candour and I make no finding against the applicant in this regard.

42. Having regard to all the circumstances of the application, the Tribunal is concerned the applicant is using the visa program to circumvent the intentions of the migration program in order to maintain ongoing residence in Australia. On the basis of the above, and having considered the applicant’s circumstances, immigration history and other relevant matters, the Tribunal is not satisfied the applicant intends genuinely to stay in Australia temporarily. Accordingly, the first named applicant does not meet cl. 500.212 (a).

43. Accordingly, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.

44. 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. As the applicant does not meet cl 500.212, the secondary applicants do not meet cl 500.311. Accordingly, the decision under review in relation to the applicants must be affirmed.

    DECISION

45. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    D. Triaca
    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.