Singh (Migration)

[2019] AATA 2275

Singh (Migration) [2019] AATA 2275 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh
Master Karmanveer Singh Saini
Mrs Gurpreet Kaur

CASE NUMBER:  1832348

HOME AFFAIRS REFERENCE(S):           BCC2018/427802

MEMBER:Donna Petrovich

DATE:8 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 08 May 2019 at 10:13am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met– remaining enrolled in courses– primary reason is for purpose of work–  lack of academic progress– number of similar courses – maintain ongoing residence – non-contentious immigration history –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, r 1.03, Schedule 2, cls 500.211, 500.212, 500.218

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 16 October 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 25 January 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the criteria for the grant of a Student Visa are not met by the applicant.

4. The applicants appeared before the Tribunal on 8 April 2019 to give evidence and present arguments.  

5. The applicants were 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 temporarily in Australia.

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

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 read and had regard to the documentation provided by the applicant to the Tribunal. This included a copy of the delegate’s decision record, the written submission of the applicant’s representative, copies of enrolment documentation and academic records and copies of past and current confirmation of enrolment documentation and academic records and copies of past and current confirmation of enrolment. The applicant also provided a handwritten copy of a Student Visa – GTE Questionnaire, and current CoE providing details of his current enrolment at the commencement of his Hearing.     

12. The applicant Mr Amandeep Singh is a 35 year old male from India. The applicant was granted his initial Visa and arriving in Australia in April 2009, when he was granted an initial Student (Temporary) (class TU) Student subclass visa 6 April 2009. He is married to Gurpreet Kaur, and has one child.

13. According to his Visa Application form whilst in Australia the applicant has commenced and completed the Following courses.  He commenced Cert III in Automotive Mechanical Technology in July 2009 and he completed this in April 2010.  He then undertook a Cert III in Frontline Management commenced April 2010 and completed this course on June 2010, and a Diploma of Management was commenced July 2010, this was completed September 2011. The applicant enrolled in Certificate IV in Business which commence in September 2011, and was completed in March 2012.  He then undertook a Diploma in Business Management which started in March 2012 and was completed in September 2012.The applicant undertook a Diploma of Business, which he commenced in November 2012 and completed in May 2013. He then started and completed an Advanced Diploma of Business in July 2013 and completed in July 2014.  The applicant undertook a Certificate IV in Marketing starting September 2014 and completed April 2015. He then undertook a Certificate IV in Automotive Mechanical Diagnosis commencing on April 2015 and completed in October 2015, and a Diploma of Automotive Technology commenced October 2015 and completed in June 2016.

14. The applicant is currently enrolled in an Advanced Diploma of Leadership and Management at the Brighton Institute of Technology, which he commenced in June 2018 and is due to complete in October 2019. A current CoE detailing this enrolment was handed up to the Tribunal during the course of the Hearing confirming this current enrolment. The Tribunal accepts and confirms that the applicant is currently enrolled in a course of study, however has concerns regarding the number of similar courses being undertaken and the lack of academic progress being made by the applicant over such a long period of time (10years).     

15. Having regard to the applicants potential circumstances in his home country. The applicant confirmed that he had previously studied a Bachelor of Arts in India in 2005; and he had enquired about studying Automotive in his home country of India.  He submitted that at that time Automotive technology was not as advanced in India as it was in Australia. The Tribunal heard from the applicant that now almost 10 years later that the Automotive Industry has caught up a lot in India. The Tribunal accepts the applicant’s response in relation to Australia having more advanced automotive technology than India historically, however; it is now recognised that India has a strong automotive industry. The Tribunal does not accept that there would be any reasonable reasons not to have undertaken these and other courses in the applicant’s home country of India in more recent times.

16. The Tribunal places significant weight on the evidence that the applicant’s time (10years) spent studying at a Vocational level in Australia without making significant academic advances. The Tribunal has concerns that this may be evidence of the student visa programme being used to circumvent the intentions of migration programme and maintain ongoing residence in Australia.         

17. In relation the applicant’s circumstances in his home Country; and his plans for the future. The applicant told the Tribunal that he has an Uncle in India who has an Automotive and Car Sales business in Hometown. When the applicant has completed his studies he would like to return to India and commence a similar business, where the applicant said his Uncle will help him and advise him.  The Tribunal finds that in spite of a range of incentives and qualifications that the applicant has spent 10 years in Australia and completed sufficient studies to prepare him for his return home and commencement of his business plan, having gained sufficient skills to do so. In spite of this the applicant seeks to prolong his stay in Australia.  Therefore, the Tribunal places little weight on the applicant’s commitment to return home.

18. The applicant did not provide evidence in relation to potential Economic circumstances in India, or make submissions around a business plan or describe the type of business in detail however; in the absence of this the Tribunal would have to take into consideration that the economic circumstances within Australia would provide a strong incentive not to return to his home country, India.

19. The Tribunal finds that there is insufficient information as to the remuneration the applicant could expect to receive in his home country or a third country compared with Australia using qualification and relevant work experience gained whilst working and studying in Australia.  

20. The Tribunal heard from the applicant that he calls his family most days (in India) on Watts- app. His Mother, Father, Brother and his sister-in-law remain in India. He told the Tribunal that his Parent’s paid for his study and some living expenses and sent money for this purpose. The applicant told the Tribunal that he had 7 months of study remaining and would be then going back to India to start his business. The Tribunal finds that the applicant has managed those relationships from Australia for a significant time, and places no weight on this in the applicants favour.  The Tribunal does not consider the applicant’s personal ties overseas would serve as a significant incentive to return to his home country and for the applicant to cease residence in Australia.

21. The applicant informed the Tribunal that he has no concerns or requirement for Military service commitments, or political or civil unrest at home or any other circumstances. When asked he said there were no issues. The Tribunal accepts this submission relation to Military Service. The applicant told the Tribunal that he had returned to India on four occasions; that he returned to visit family on two occasions, for medical treatment on an injured knee and to be married. The Tribunal accepts the applicant’s submission.

22. Further to his potential circumstances in Australia, the applicant submitted to the Tribunal that he has worked in Hospitality as a Kitchen hand in the past in two different restaurants, (in Toorak and Burwood) in a part-time capacity.  He is currently working as a Taxi driver on a part- time basis. The applicant lives with his wife and child in a rental property in Keysborough.

23. The applicant submitted that he has worked part- time in Hospitality and now drives a Taxi part-time. The applicant has also lived and studied in Australia for nearly 10 years. During this time both he and his wife have interacted in the community in the usual way, undertaking work, study, and forming friendships as would be expected in the normal course of daily life. The Tribunal finds that his ties and knowledge of living in Australia provide a substantial incentive to remain and place significant weight on this factor.

24. The applicant has chosen to undertake mainly vocational courses in Australia, which are not commensurate with the applicant’s Bachelor Arts previously undertaken in India.  In Light of the number of Courses undertaken by the applicant from 2008 until the present time, a period of 10 years and the type of courses undertaken (of a similar nature), the Tribunal has concerns that the applicant is using his Student Visa’s to maintain ongoing residence.         

25. The Tribunal acknowledges that the applicant has studied assiduously since arriving in Australia, and has successfully completed all of the courses undertaken by him in Australia; with the exception of his current course, which is still in progress. The Tribunal considers the number of courses which the applicant has already achieved should provide the applicant with a knowledge base that may be deployed to solve many business challenges in relation to running his proposed automotive business in the future.

26. In considering the range of Automotive, Management, and   Leadership courses undertaken by the applicant; and the value of those courses to the applicant’s future. The Tribunal has concerns that the value of the applicant’s current vocational study of Advanced Diploma of Leadership and Management are of a lower standard than the Bachelor of Arts undertaken in India. The Tribunal finds that the applicant has already gained the relevant qualifications to pursue his business in Automotive and Car Sales in India. The Tribunal takes the view that the applicant now has more than enough skills.

27. As such, the Tribunal does not consider that the course proposed will provide additional value to the applicant to obtain or improve his employment or business opportunities in India. It follows that the Tribunal does not consider this proposed study will increase the remuneration the applicant could expect to receive in his home country or a third country.  

28. In relation to the applicant’s immigration history, the applicant has complied with multiple previous visa conditions and has a non-contentious immigration history. The applicant applied and was granted Student visa’s on 6 April 2009, 17 September 2014, and Graduate Work stream Visa on 10 November 2017. The applicant has returned to India on four occasions and otherwise unremarkable Visa history as submitted in his Student Visa application.  The Tribunal places no weight in favour of the applicant in this regard.

29. The Tribunal considers that applicant’s primary reason for remaining in Australia is for purpose of work and that he is remaining enrolled in courses in order to maintain ongoing residency in Australia.

30. The Tribunal finds there are no other relevant matters.

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. Conclusion on cl.500.212

33. 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.

34. 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

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

    Donna Petrovich
    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.