Sran (Migration)

[2023] AATA 923

Sran (Migration) [2023] AATA 923 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandeep Singh Sran
Mrs Mandeep Kaur Dhillon

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2207352

HOME AFFAIRS REFERENCE(S):          BCC2017/5012047

MEMBER:Wendy Banfield

DATE:27 March 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

·cl 500.212 of Schedule 2 to the Regulations

·cl 500.311 of Schedule 2 to the Regulations

Statement made on 27 March 2023 at 3:12pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– federal court remittal – genuine applicant for entry and stay in Australia as a student – satisfied the course is relevant to the applicant’s proposed future employment in his home country – applicant was a student dependent of his spouse – applicant has made continuous academic progress in his courses of study – proximity to completion of the course – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, r 1.12, Schedule 2, cls 500.212, 500.311

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 18 April 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 December 2017. 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 visa on the basis that the applicant did not satisfy the requirements of cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied the applicant met the criteria of a genuine temporary entrant for study, as required for the grant of a student visa.

4. The matter is before the Tribunal because of an Order by the Federal Court of Australia dated 11 April 2022 setting aside a decision of the Tribunal (differently constituted) and remitting the application for decision.

5. The primary applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments.

6. The applicants were assisted in relation to the review.

7. Prior to the hearing the applicant submitted the following evidence:

   ·Representative’s submission dated 14 November 2022.

   ·Confirmation of Enrolment (COE for a Certificate III in Automotive Diesel Engine Technology starting on 06/06/2022 and ending 02/06/2023.

   ·Course progress statement from Skills Institute Australia dated 14 November 2022 confirming the applicant’s enrolment and satisfactory progress.

   Representative’s submission

8. The representative set out briefly the applicant’s immigration background and the details of his application history that resulted in a Federal Court of Australia remittal. On behalf of the applicant the following claims were made:

9. The applicant is a genuine student and has completed a Certificate Ill in Automotive Mechanical Technology, a Certificate IV in Automotive Technology, a Diploma in Automotive Mechanical Technology and is currently enrolled into Certificate Ill in Automotive Diesel Engine Technology. His plans are to return to his home country upon completion of his studies and start his own business in the that field. His current course will give him the skills to operate heavy vehicles. His own business provides an incentive for him to return home. He would not receive the same quality of education in India.

10. The applicant has only travelled to India for 95 days but maintains contact with his family

11. The applicant’s brother and father passed away last year. His mother is alone and has no support which is an incentive for him to return. The applicant “is seeking a student visa grant until June 2023 only for the duration of his current studies and he claimed that this is the last studies he enrolled in and has no plans to stay further in Australia.” He will start his own business in automotive industry in his home country where his skills and knowledge will allow him to compete. India is lacking diesel mechanics because there are not many education providers.

    Evidence at the hearing

12. Relevant information submitted about the applicant’s circumstances and the claims made at the Tribunal hearing were as follows:

13. The applicant came to Australia in 2008 as a dependent on his spouse’s student visa. His mother continues to live in India, his father and brother having passed away. His wife is his only relative in Australia. The applicant is studying diesel mechanics and his wife works in a grocery store. The applicant is supported financially by his wife, his mother and maternal uncle in Canada. While enrolled previously the applicant suffered back pain, he is feeling better now having taken medicine and has re-enrolled to study. If he experiences back pain in future when he has a business, he will hire people. The applicant plans to open a workshop employing others in his home country. Although he will hire diesel mechanics, he needs the knowledge to be able help his workers. He does not want to only rely on his employees. The units he is currently studying are totally different to his previous studies.

14. The applicant enrolled in a leadership and management course previously because he wanted knowledge to run a business. The applicant’s mother was previously looked after by his brother. He agreed he has been in Australia for nearly 14 years, but his brother has passed away and his mother is alone. The applicant only wants to study. He applied for a Subclass 186 permanent visa in the past because his employer asked him to. The applicant is studying until June 2023 and afterwards will plan to go to India. He just needs to have the diesel mechanics course as he has all other skills from previous courses. The applicant’s mother is alone, and he does not want her to live by herself.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student who intends genuinely to stay in Australia temporarily.

17. 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?

18. 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.

19. 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.

20. The Tribunal considered the applicant’s circumstances in his home country. The applicant gave reasons for not undertaking the course he is studying in Australia in his home country. He claimed he would not receive an education at the same level which the Tribunal accepts as reasonable. While the extent of the applicant’s ties to his home country appears to be minimal, he advised his mother lives there alone after her husband and the applicant’s brother passed away. It was submitted that this is an incentive for him to return. The applicant advised he is not currently working in Australia and his wife is employed in retail. The applicant’s evidence is that the prospect of opening his own business in India is an incentive to return. On balance, the Tribunal is prepared to accept the applicant has ongoing ties to his home country.

21. The applicant’s circumstances in Australia are that his spouse resides with him. He has been onshore for approximately 14 years as of the date of the hearing and has spent little time in India since his arrival in 2008. The Tribunal accepts the applicant has no other family members in Australia and that he has not been the primary holder of a student visa for the entirety of his temporary residency. While in Australia the applicant has been employed while his wife was a student, he worked as a motor mechanic and has completed several courses related to his trade. The Tribunal is concerned the applicant applied for a new student visa to maintain ongoing residence in Australia. This is because he previously suffered what appears to have been debilitating back pain but has enrolled to study a trade course that involves servicing heavy vehicles. The applicant claimed if his injury reoccurred, he would hire diesel mechanics, but also claimed he needed to take the course to be able to supervise his workers. The Tribunal is not satisfied the applicant has provided a reasonable explanation for undertaking a Certificate III in Automotive Diesel Engine Technology when he has already completed studies in motor mechanics, and he has declared it would be possible to hire diesel mechanics if necessary. The Tribunal accepts the applicant has knowledge of living in Australia and of his intended course of study and the associated education provider. It is also accepted the applicant is studying in line with his previous qualifications albeit at a lower level. However, the Tribunal considers the applicant has re-enrolled in a course of study that it is not necessary for him to take which weighs against him in assessing whether he is a genuine temporary entrant for study.

22. Regarding the value of the course to the applicant’s future, the Tribunal notes the applicant is undertaking a course that is not consistent with his current level of education. This is because he has studied to Diploma level but is now undertaking a Certificate III course. However, as it is related to vehicle mechanics, the course will assist the applicant to obtain employment (such as his own business) or improve employment prospects in his home country. The Tribunal is satisfied the course is relevant to the applicant’s proposed future employment in his home country. The applicant has not given an indication of the remuneration he could expect to receive in his home country compared with Australia using the qualifications to be gained from the proposed course of study but given his stated intention to establish his own workshop, it is unlikely this would be known at this stage. The Tribunal is satisfied the course the applicant is taking would objectively be of value to the applicant’s future.

23. The applicant’s immigration history indicates he previously applied for a Subclass 186 Employer Nomination Scheme visa. According to the applicant’s evidence, his employer requested he make the application. However, the applicant clearly agreed to the application even if it was not initiated by him. This weighs against the applicant in the Tribunal’s assessment. The Tribunal considered the amount of time the applicant has spent in Australia as a temporary visa holder which is significant but as noted in this decision, the applicant was a student dependent of his spouse, and held a temporary work visa before applying to study himself. In his submissions to the Tribunal the applicant provided a letter from his education provider that indicated satisfactory progress in his course. The Tribunal considers the applicant should be able to complete the course he is currently undertaking since it is due to be completed on 2 June 2023.

    Other relevant information

24. The Tribunal has based its decision in part on the applicant’s claims made at the hearing and through his representative’s written submission that he is seeking a student visa until June 2023 “only for the duration of his current studies” and plans to return to India after completing the Certificate III in Automotive Diesel Engine Technology course. The applicant has requested the opportunity to complete his current course and has declared he plans to return to India to open a workshop and take care of his mother. Therefore, the Tribunal has decided to remit the matter to the Department.

25. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl 500.212(a).

26. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    Member of Family Unit – Secondary visa applicant

27. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

28. The Tribunal accepts that as the first named visa applicant satisfies the primary criteria, the secondary applicant meets the criteria because they are a member of the family unit of a person who satisfies the primary criteria in cl.500.212.

    DECISION

29. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.212 of Schedule 2 to the Regulations.

    ·cl 500.311 of Schedule 2 to the Regulations.

    Wendy Banfield
    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;

    d.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

    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.