Singh (Migration)

[2019] AATA 3158

Singh (Migration) [2019] AATA 3158 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gaganjot Singh (‘Primary Applicant’)

Mrs Akveer Kour (‘Secondary Applicant’)

CASE NUMBER:  1713840

HOME AFFAIRS REFERENCE(S):     BCC2017/1025791

MEMBERS:P. Wood (Presiding)

Dr J. Harkess

DATE:9 April 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 9 April 2019 at 8:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – period when primary applicant not enrolled in any course – recent change of career plans – stated intention to return to home country – circumstances of decision to undertake further studies – incentive to return to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 359, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

CASES
Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The Applicants are citizens of India. They seek review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the delegate’) on 13 June 2017 refusing to grant them Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’). Pursuant to s 347 of the Act, the Applicants lodged an application for review of the delegate’s decision with the Tribunal on 28 June 2017.

2. The Applicants applied for the visas on 15 March 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The Applicants applied for the visa for the Primary Applicant to undertake study in Australia and do 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 Primary Applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘Regulations’), namely that the Primary Applicant was not considered to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided by the Applicants to the Tribunal with the review application.

4. The Primary Applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. He attended the hearing with his spouse Mrs Kour, the Secondary Applicant. The Applicants were assisted in relation to the review by their registered migration agent.

5. The Tribunal is also in receipt of the following documentary material, provided by the Applicants, which the Tribunal has considered before arriving at a decision in relation to the present application on review:

   ·Primary Applicant’s Statement of Genuine Temporary Entrant Criteria and Statement of Purpose, undated (emailed to Tribunal on 26 February 2019);

   ·Response to Tribunal’s request for further information made pursuant to s 359(2) of the Act, dated 18 January 2019;

   ·Copies of documents from Elite Education Institute relating to the Primary Applicant’s enrolment in and successful completion of Bachelor of Business (Professional Accounting);

   ·Copies of Primary Applicant’s Diploma of Accounting, Certificate IV in Accounting and associated academic records obtained from Chisholm Institute (‘Chisholm’), Melbourne;

   ·Copies of documentation sourced from India relating to the Primary Applicant’s secondary education from 2010-2012; and

   ·Copies of documentation relating to enrolment in a Masters of Business Administration (MBA) degree.

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

APPLICABLE CRITERIA

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 of the Regulations. The primary criteria in cls 500.211 to 500.218 must be satisfied by at least one applicant.[1] Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria. Whether an applicant satisfies the criteria is to be determined at the time the Tribunal’s decision is made.[2]

   [1] Migration Regulations 1994 (Cth), cl 500.2.

   [2] Migration Regulations 1994 (Cth), cl 500.2.

2. The issue in this case is whether the Primary Applicant satisfies the primary criteria contained in cl 500.212 of the Regulations. Clause 500.212 states that the following must be satisfied:

   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.

3. In considering whether an applicant satisfies cl 500.212, the Tribunal must have regard to ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (‘Direction No 69’).[3] Direction No 69 requires that the Tribunal should have regard to a number of factors, including the following:

   [3] Minister for Immigration and Border Protection, ‘Direction No 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications’ (commencing on 1 July 2016).

   ·the applicant’s circumstances in their home country, including:[4]

   [4] Direction No 69, cls 6, 9.

   ▪   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 (consideration should be given to any reasonable motives established by the applicant);[5]

   [5] Direction No 69, cl 9(a).

   ▪   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;[6]

   [6] Direction No 69, cl 9(b).

   ▪   economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country (which may include consideration of the applicant’s circumstances relative to the home country and to Australia, and of the applicant’s circumstances in their home country relative to the circumstances of others in that country);[7]

   [7] Direction No 69, cls 9(c), 10.

   ▪   military service commitments that would present as a significant incentive for the applicant not to return to their home country;[8]

   [8] Direction No 69, cl 9(d).

   ▪   political and civil unrest in the applicant’s home country (which might motivate an applicant to apply for a student visa as a means of obtaining entry to Australia for the purpose of remaining indefinitely).[9]

   [9] Direction No 69, cl 9(e).

   ·the applicant’s potential circumstances in Australia, including:[10]

   [10] Direction No 69, cls 6, 11.

   ▪   the applicant’s ties with Australia which would present as a strong incentive to remain in Australia (which may include family and community ties);[11]

   [11] Direction No 69, cl 11(a).

   ▪   evidence that the student visa programme is being used to circumvent the intentions of the migration programme;[12]

   [12] Direction No 69, cl 11(b).

   ▪   whether the Student visa is being used to maintain ongoing residence;[13]

   [13] Direction No 69, cl 11(c).

   ▪   whether the primary applicant and secondary applicant (if any) have entered into a relationship of concern for a successful student visa outcome (eg, where the Tribunal considers that the primary and secondary applicant have contrived a relationship for the purpose of a successful visa application outcome);[14]

   [14] Direction No 69, cl 11(d).

   ▪   the applicant’s knowledge of living in Australia and their intended course of study and the associated 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;[15]

   [15] Direction No 69, cl 11(e).

   ·the value of the course to the applicant’s future, including:[16]

   ▪   whether the applicant 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 (allowing for reasonable changes to career or study pathways);[17]

   ▪   relevance of the course to the student’s past or proposed future employment either in their home country or a third country;[18]

   ▪   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;[19]

   ·the applicant’s immigration history, including consideration of:[20]

   ▪   previous visa applications for Australia or other countries that were granted, that were refused (and the grounds for the refusal), or applications that may yet to be finally determined;[21]

   ▪   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, whether there were circumstances beyond their control;[22]

   ▪   whether the applicant previously held a visa in Australia or another country that was cancelled, or considered for cancellation, and the associated circumstances;[23]

   ▪   the amount of time the applicant has spent in Australia and whether the student 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;[24]

   ▪   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.[25]

   [16] Direction No 69, cls 7, 12.

   [17] Direction No 69, cl 12(a).

   [18] Direction No 69, cl 12(b).

   [19] Direction No 69, cl 12(c).

   [20] Direction No 69, cls 4, 5, 13, 14.

   [21] Direction No 69, cl 14(a).

   [22] Direction No 69, cl 14(b)(i).

   [23] Direction No 69, cl 14(b)(ii).

   [24] Direction No 69, cl 14(b)(iii).

   [25] Direction No 69, cl 14(b)(iv).

4. Direction No 69 also states that weight should be placed on an applicant’s circumstances that indicate that the student visa is intended primarily for maintaining residence in Australia.[26] The circumstances of some student visa applications may require the Tribunal to engage in further scrutiny of the merits of the application, including where:

   ·there is relevant and potentially applicable information in statistical, intelligence and analysis reports on migration fraud and immigration compliance complied by the Department of Home Affairs (‘the Department’, formerly known as the Department of Immigration and Border Protection’);[27]

   ·the applicant or a relative of the applicant has an immigration history of reasonable concern;[28]

   ·the applicant intends to study in a field unrelated to their previous studies or employment;[29]

   ·there are apparent inconsistencies in information provided by the applicant in their student visa application.[30]

   [26] Direction No 69, cl 8.

   [27] Direction No 69, cl 4(a).

   [28] Direction No 69, cl 4(b).

   [29] Direction No 69, cl 4(c).

   [30] Direction No 69, cl 4(d).

5. However, Direction No 69 also stipulates that the factors specified in it should not be used as a checklist. They are intended only as a guide for decision makers, which includes the Tribunal, when they come to consider an applicant’s circumstances as a whole in determining whether the applicant satisfies the genuine temporary entrant criterion.[31] The Tribunal should assess whether, on balance, the genuine temporary entrant criterion is satisfied by considering the applicant against all factors specified in Direction No 69 as well as any other relevant information provided by the applicant or that is otherwise available to the Tribunal.[32] Other relevant information includes information that may be either beneficial or unfavourable to the applicant.[33] Ultimately, the Tribunal should refuse the visa (or, in this case, affirm the delegate’s decision) if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the Tribunal is not satisfied that the applicant genuinely intends to stay temporarily in Australia.[34]

   [31] Direction No 69, cl 1.

   [32] Direction No 69, cl 2.

   [33] Direction No 69, cl 16.

   [34] Direction No 69, cl 5.

6. Direction No 69 is a lawful direction of the Minister made in accordance with s 499 of the Act. The Tribunal is therefore bound to consider it and, to the extent that its terms are relevant, apply it to the Primary Applicant’s case.[35] Accordingly, the terms of Direction 69 and their application to the Primary Applicant’s case have been considered in relation to material before the Tribunal. The Tribunal, however, recognises that it is an independent statutory body. It must therefore reach its own conclusion as to the merits of the Applicant’s case, which includes an assessment of how and to what extent each factor in Direction No 69 is relevant and applicable, independently of any conclusions reached by the delegate.

   [35] FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

CONSIDERATION OF APPLICANTS’ CASE

Background and Circumstances in Relation to the Visa Application

1. The Primary Applicant is from the Sri Ganganagar district in Rajasthan, India, as is the Secondary Applicant. The Primary Applicant’s parents and grandparents remain in India. The Primary Applicant is financially supported by his grandmother for the duration of his stay in Australia. In oral evidence at the hearing before the Tribunal, the Primary Applicant stated that he and the Secondary Applicant were married in December 2014 in India.

2. The Primary Applicant initially entered Australia on 24 December 2013 on a valid Class TU, Subclass 573 (Temporary Student) visa (‘the first visa’). The first visa had been granted offshore on 27 November 2013 and was valid until 15 March 2017. It was subject to conditions which included, among others, a condition that the visa holder must remain enrolled and achieve satisfactory course attendance and progress in a registered course (‘condition 8202’), and a condition that the visa holder continue to satisfy the primary criteria upon which the visa was granted (‘condition 8516’). As the delegate’s decision record notes, the first visa was granted on the basis that the Applicant was enrolled in and would study for the degree of Bachelor of Accounting at La Trobe University (‘La Trobe’) in Melbourne.

3. The Primary Applicant commenced a Certificate IV in Accounting at Chisholm in early February 2014. He successfully completed the Certificate IV course on 16 June 2015. He also enrolled in and successfully completed a Diploma of Accounting during the period 9 November 2014 to 10 September 2015. He was then due to commence the Bachelor of Accounting course at La Trobe in February 2016. However, as the delegate’s decision record notes, the Primary Applicant’s enrolment in this course was cancelled before the commencement of his studies. The delegate’s decision record also notes that the Primary Applicant then ceased studying altogether and was not enrolled in any course for the period 15 February 2016 to 17 July 2016.

4. In giving evidence before the Tribunal, the Primary Applicant stated that he ceased his enrolment in the Bachelor’s course at La Trobe because he wanted to study closer to the Melbourne central business district. Accordingly, he enrolled in the Bachelor of Business (Professional Accounting) at Elite, which he commenced on 18 July 2016. He also stated in his s 359(2) response dated 18 January 2019 that one of the reasons he chose the Elite Bachelor’s course is that it was cheaper than similar courses at other universities.

5. However, the issue remains as to why there was a five-month period from February to July 2016 when the Primary Applicant was not enrolled in any course at all. The Primary Applicant’s migration agent submitted at the hearing before the Tribunal that there appears to have been an oversight on the part of the delegate in this respect. However, that submission appears to be at odds with all the documentation provided by the Primary Applicant pertaining to his academic progress at both Chisholm and Elite. That documentation also demonstrates that there was a five-month period from February to July 2016 when the Primary Applicant was apparently not enrolled in any course at those either Chisholm or Elite. In the end, the Tribunal considers that the Primary Applicant has not provided a satisfactory explanation for that five-month period in 2016 when he was not enrolled in any registered course. As the delegate noted, this amounted to a breach of a condition of the Primary Applicant’s first visa.

6. When the first visa was due to expire on 15 March 2017, the Primary Applicant was only part-way through the Bachelor’s course at Elite. In his visa application form lodged with the Department, the refusal of which is now the subject of review before the Tribunal, the Primary Applicant specified his desire to complete the Bachelor’s degree as being the exclusive reason he was seeking a second temporary student visa. He emphasised that he had long held a desire to pursue a career in accounting and that, upon completing the Bachelor’s course, he would then obtain a job in accounting in India. In his s 359(2) response dated 18 January 2019, the Primary Applicant repeated this ultimate career aspiration which he hoped to realise following the conclusion of his studies at Elite, stating that his ‘plans are to seek a job as a[n] accountant in my home country once I finish my study in Australia.’ Having reviewed his original application form lodged with the Department, the Tribunal is of the view that the Primary Applicant made out a strong case for studying accounting in Australia at Elite and being permitted to stay in Australia so that he could complete his Bachelor’s degree.

7. The Primary Applicant successfully completed his Bachelor’s degree earlier this year. The successful completion of that course coincided with the hearing scheduled before the Tribunal of the present application on review in late February. However, it became evident at the hearing that the Primary Applicant has now changed his career plans, that change in direction coming about only recently. The Primary Applicant presented material to the Tribunal which indicated that he had made inquiries, approximately two weeks before the hearing scheduled before the Tribunal, to enrol in a Master of Business Administration / MBA course at the Holmes Institute. This MBA course now forms the basis of his claim that he meets the genuine temporary entrant criteria in relation to the present application on review. He stated in evidence, which was corroborated by his written Statement of Genuine Temporary Entrant Criteria and Statement of Purpose emailed to the Tribunal on 26 February 2019, that his career aspirations now lie within the leadership and management field. Evidence of enrolment in the MBA course was provided to the Tribunal after the hearing.

Does the Primary Applicant Meet the Genuine Temporary Entrant Criteria?

1. The Primary Applicant’s change of career aspiration appears to coincide too conveniently with the completion of his Bachelor’s degree in accounting and the hearing of the present application on review. If he had maintained his previously articulated desire to become an accountant, and been consistent with his previous representations that he would return to India to find a job in that field once he completed his Bachelor’s degree, then he would by now have returned to India. There would be no rational basis for him to stay in Australia, and there would be no rational basis for him to continue to prosecute the present application on review.

2. As it turns out, he has not returned to India. If the Tribunal is to take his present claims at face value, he has now chosen to forego his long-held desire to become an accountant in India in order to pursue instead a career in leadership and management. The Tribunal accepts that there is a logical connection between a career in accounting and the furtherance of such a career by undertaking courses in leadership and management. However, in this case the swiftness with which the Primary Applicant has altered his long-held plan to return to India following completion of his Bachelor’s degree, as the completion of the degree and the hearing date of the present application have converged, is palpable.  In these circumstances, it seems more likely that the Primary Applicant’s change in career direction was motivated by an imperative need for him to identify a new legitimate basis for maintaining the present application on review, the previous legitimate basis no longer being operative.

3. For these reasons, the Tribunal does not accept that the Applicant has genuinely changed his mind in relation to his career plans. The proposed MBA course and re-adjusted career plans which the Primary Applicant has produced are not, in the Tribunal’s view, legitimate at all. Rather, they appear to be contrived means by which the Primary Applicant is attempting to use the student visa programme to circumvent the intentions of Australia’s migration programme and to maintain ongoing residence in Australia.

4. The Tribunal has had regard to other matters which do not allay these concerns. While the Applicant’s immediate family remains in India, the Tribunal is not satisfied his family provides a sufficiently strong incentive for him to return to his home country upon completion of his new proposed course of study. His spouse, the Secondary Applicant, remains with him in Australia. The Primary Applicant has also disclosed no specific job waiting for him and other assets in India, which might suggest he has other incentives to return home. While there is no substantial evidence before the Tribunal relating to the Applicants’ personal circumstances in Australia, they have now been in Australia for several years and evidently have a desire to remain in Australia. It is reasonable to conclude that the Applicants have cultivated a satisfactory lifestyle and have established the ordinary ties to the Australian community that would be expected given the length and type of their stay. As each day passes, those ties would be expected to strengthen. The Tribunal also recognises that the United Nations classifies India as a ‘medium human development’ country, ranking it 130^th in the world by the United Nations Human Development Index, whereas Australia is classified as having ‘very high human development’ and is ranked third.[36] It is an objective measure that provides a further basis for concluding that the Applicants would probably prefer to remain in Australia rather than return to India. All of these matters are course for concern in relation to the genuineness of the Applicants’ intentions in relation to the present visa application.  

   [36] United Nations Development Program, Human Development Indices and Indicators: 2018 Statistical Update (UNDP, 2018) URL = <>

   The Tribunal has also had regard to the Primary Applicant’s immigration history. The unexplained cessation of the Primary Applicant’s enrolment in 2016 remains a significant concern. The Primary Applicant was obliged to remain enrolled in a registered course for the currency of the first visa. For a five-month period in 2016, when his enrolments ceased altogether, he effectively remained in continuous breach of a condition of the first visa. That breach is sufficiently serious that it now casts doubt on the Primary Applicant’s claim that he intends to comply with the conditions that would be attached to a second visa, were a second visa to be granted.

5. The Tribunal has considered matters that may operate favourably towards the Primary Applicant. In that regard, the Tribunal notes that an MBA obtained from an Australia educational course provide may provide some additional value to the Primary Applicant’s career prospects were he to return to India following completion of the qualification. The Tribunal also accepts that there may be very legitimate reasons for an Australian MBA course provider to be chosen ahead of an Indian MBA course provider. An Australian MBA qualification may indeed lead to a significantly higher salary for the Primary Applicant in India.  However, for reasons articulated above, the Tribunal has found that Primary Applicant’s basis for proposing the Australian MBA course is disingenuous. The possible value that an Australian MBA might bring to his future therefore carries limited weight in relation to the present application on review.

6. The Tribunal also notes that there do not appear to be any issues relating to potential military service and political or civil unrest in India affecting the Applicant.

7. There appear to be no other matters of significance that are relevant for the purposes of determining the present application on review.

Conclusion

1. For the above reasons, on balance the Tribunal is not satisfied that the Primary Applicant genuinely intends to stay temporarily in Australia as a student.

DECISION

1. The Tribunal affirms the decision not to grant the Applicants Student (Temporary) (Class TU) visas.

P. Wood
Senior Member

Dr J. Harkess
Member