Singh (Migration)

[2019] AATA 957

Singh (Migration) [2019] AATA 957 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yugraj Singh

CASE NUMBER:  1720108

HOME AFFAIRS REFERENCE(S):           BCC2017/1409214

MEMBER:E.Tueno

DATE:27 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 27 March 2019 at 4:40pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – completed studies in painting and construction – value of proposed courses – further studies in management and marketing – intention to establish business – work experience in painting industry – familial ties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

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 Immigration and Border Protection on 24 August 2017 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 April 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 he was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 genuinely intends to stay temporarily in Australia.

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

7. 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?

8. 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 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.

9. 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.

10. The applicant provided the Tribunal with written submissions dated 12 March 2019 together with certificates of completion of a Certificate III in painting and decorating dated 1 March 2016, a Diploma of Building and Construction (Management) dated 28 March 2017 and a Diploma of Leadership and Management dated 30 May 2018.  The applicant also provided confirmation of enrolment in the following courses: an Advanced Diploma of Leadership and Management which is nearing completion, Certificate IV in Marketing and Communication due to commence on 17 June 2019 and a Diploma of Marketing and Communication to commence on 13 January 2020.

11. The applicant is a 25 year old Indian national.  He first arrived in Australia 22 February 2014 on subclass TU 573 student visa and enrolled in a Diploma of Business which would lead to a Bachelor of Business.  He studied for six months before requesting to change courses to the Certificate III in painting and decorating.  He applied with the Department of Immigration on 17 November 2014 to change his visa to a subclass 572 visa.  This was initially refused but the applicant appealed to the Tribunal, which remitted the matter back to the Department having found that the applicant did satisfy the criteria for the subclass 572 visa.  The Tribunal accepts that the change in courses was due to the applicant’s interest in painting and construction work.

12. The written submissions stated that:

    ·the applicant had always had an interest in painting while living in India.  He did not give it serious thought until he came to Australia and saw that it could be a lucrative industry. 

    ·he has few reasons to stay in Australia after studying because his parents want him to return only after having completed his studies and secondly because he cannot afford to frequently travel to India.  He decided to stay in Australia until the completion of his studies.  

    ·The applicant chose to study in Australia to get broad exposure with students from multiple nationalities and because he would have been career opportunities on his return to India.

    ·The applicant has sufficient funds for his further studies, cost of living in Australia and return ticket to India.

    ·In relation to the relevance of his studies to his future career, he is “continuing with his last studies in Australia for better career opportunities”.

    ·All his family, social circle and assets are in India.  The applicant is in regular contact with them by phone and internet.  

13. At the hearing on 14 March 2019, the applicant responded to a range of questions that went to the matters set out in Direction No. 69.  The applicant told the Tribunal that:

    ·He studied painting in Australia and then the building and construction course because he is interested in painting, that he has a passion for it.  He has chosen this as his profession.

    ·From July 2017 to June 2018 he worked as a painter earning $26,691 that year.  He currently works part time as a painter and earns $25 to $30 per hour.  He works about 20 hours per week and earns between $2,000 and $2,500 per month.  He learns on the job about painting as well as design and wallpapering.

    ·In the future, he wants to run his own house painting business in India.  He anticipates earning a minimum of 200,000 rupees per month in the painting business.  He will have employees but their salary but the 200,000 rupees per month would be his own wage.

    ·He has been working in Australia for the lasts four years as a painter for various employers.

    ·In relation to the courses he is currently enrolled in (the Advanced Diploma of Leadership and Management, Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication) he said that simply knowing the painting work is not enough.  He said he needs to do the part time work as a painter first, and then learn to work in a team and how to manage a team.  He said once he knows how to manage a team, he can then run a business.  After this, he can start and expand his business.  To do this, he needs to know marketing so he can run the business in a better way.

    ·He said he has no experience of running his own business.  But because he works for a painter, he is learning from his employer how a business operates and how to deal with other companies, getting new work and how the quality of work should be.

    ·He said he is learning a lot on the job, watching how his employer runs his business.  He said his employer markets his business by sending prospective clients a demonstration of their work so they can inspect the quality of work. 

    ·He said painting can be lucrative in Australia and the standard of work is higher here.  He said there are courses available in India that he could study but the standard is better in Australia.  He said over time, he changed his mind about what he wanted to do with his future.  He wanted to take a closer look at painting.

    ·The highest level of education he completed in India was high school.

    ·The applicant stated that he has an elder sister and younger brother both living in Australia.  His sister has been in Australia for the last year and a half while his brother has been in the country for the last two years.  His mother and father still live in India as well as another brother and sister and his grandparents.  He said that he has not returned to India since entering Australia in 2014 because if he visits his family, they will not let him return here.

    ·He said prior to coming to Australia, he was studying to become a painter.  He was also working as a painter in India but only as a hobby.  He was earning 100,000 rupees per month working with his father on a dairy farm and a further 2,000,000 to 4,000,000 rupees per every six months performing agricultural farming work.

    ·He said he has never been to Australia prior to entering in 2014 and has not applied for visa to any other country.

14. The Tribunal has considered the Ministerial Direction No 69. 

15. The Tribunal is satisfied that the applicant has reasonable reasons for not studying painting and construction in his home country of India.  He gave evidence that there were courses available in India, but simply said that the standard was better in Australia.  The Tribunal accepts that this may be the case and further notes that the applicant did not consider painting to be a real possibility until he came to Australia.  He then went on to the complete painting and construction courses in Australia.

16. The applicant’s reasons for study go beyond wanting to complete vocational studies in painting and construction.  The applicant claims that he needs to complete the Advanced Diploma of Leadership and Management, Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication because he needs to know marketing in order to run his business.  The Tribunal considers that the applicant has gained sufficient knowledge and experience through his painting and construction studies in combination with having worked for painters in Australia for the last four years.  The Tribunal considers that the courses he is currently enrolled for the next three years will be of little assistance to the applicant in his chosen vocation.  The applicant gave evidence about how he has been able to observe his employers both operate their businesses and market their businesses.  The Tribunal considers that objectively the applicant has more than sufficient skills, knowledge and qualifications to have confidence to embark upon the opening and running of a house painting business in India or elsewhere.

17. The Tribunal accepts the evidence of the applicant in relation to the potential remuneration he may receive in India working as a painter.  However, the evidence did not demonstrate how the Advanced Diploma of Leadership and Management, Certificate IV in Marketing and Communication and the Diploma of Marketing and Communication will impact on his earnings.  As previously stated, the Tribunal considers the applicant has the skills required to operate a painting business in India.

18. The Tribunal takes into account that the applicant has not left Australia since arriving in 2014 and his reason for this is because he cannot afford to.  The applicant states in his 359(2) questionnaire that the last time he saw his parents was in 2017.  He states that he stays in contact with family by phone and internet.  The Tribunal accepts that this demonstrates ties to India.  However, the Tribunal also notes in his evidence that he has a brother and sister also studying in Australia.  Given the lengthy period he has remained onshore in Australia, the Tribunal is not satisfied that such ties represent a significant incentive to return to India, particularly when he has family in Australia. 

19. In his 359(2) questionnaire to the Tribunal, the applicant stated that he had no military commitments in India and that there was no political or civil unrest.

20. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  However, the applicant has worked for four years as a painter and has learnt on the job about marketing and operating a painting business.  The courses he is enrolled in will have little bearing on his chosen vocation.  The Tribunal is concerned that a further student visa may be used primarily for maintaining ongoing residence and employment in Australia.

21. 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). 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.

22. 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

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

    E.Tueno
    Member

    
    

    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:

    c.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    d.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    e.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    f.whether 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

    g.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;

    i.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    ii.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

    iii.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country

    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.