Sukhpreet Kaur (Migration)

[2020] AATA 5753

Sukhpreet Kaur (Migration) [2020] AATA 5753 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Sukhpreet Kaur
Mr Bhupinder Singh
Master Abhijot Singh

CASE NUMBER:  1924931

HOME AFFAIRS REFERENCE(S):          BCC2019/3530042

MEMBER:D Triaca

DATE:10 December 2020

PLACE OF DECISION:  Melbourne

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

·cl.500.212 of Schedule 2 to the Regulations

Statement made on 10 December 2020 at 3:19pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – current enrolment – applicant on track to complete studies – relevant studies and business plan for proposed event business – family commitments in India – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 65, 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

CASES

Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292

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 August 2019 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 15 July 2019. 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).

4. The applicants appeared before the Tribunal on 10 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Husband, Bhupinder Singh, a Secondary Applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 matter should be remitted for reconsideration.

   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.

   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. Whilst not defined in the Regulations, the word genuine may be taken to mean ‘authentic, real or true’ in according with its ordinary and natural meaning. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student.[1] Secondly, a ‘genuine applicant’ is a person who intends to comply with any conditions to which the visa may be subject.[2]

    [1] See Singh [2019] (Migration) AATA 2993 at [13]

    [2] See the discussion of the meaning of ‘genuine applicant’ in Vu Vu (Migration) [2019] AATA 5740 (18 December 2019) [22] – [25] upheld on appeal in Vu Vu & Ors v Minister for Immigration and anor [2020] FCCA 2292

12. This is a strong application for reconsideration.

13. The issues in this case arose in the following circumstances. The main applicant (applicant) is a 31 year old citizen of India. She first arrived in Australia on 20 May 2019 on a visitor visa. Her Husband and son are Secondary Applicants, although son no longer resides in Australia, being cared for by her parents in law in India. She applied for a student visa on 15 July 2019. On 16 August 2019 a delegate of the Department refused her application (delegate’s decision). On 5 September 2019 she applied to the Tribunal for a review of the delegate’s decision.

14. The tribunal has read and had regard to documentation provided by the applicant to the Department and the tribunal including the delegates decision, Application for a student visa, confirmation of enrolment documents, evidence of overseas study, employment documents, submissions, certificates of overseas student health cover, passport. On 12 May  2020 the tribunal wrote to the applicant inviting her to provide further information in accordance with section 359(2) of the Act. On 25 May 2020 the applicant responded in writing (359 response) The tribunal has read and had regard to the applicant’s 359 response and supporting documents and further documents filed on her behalf on 30 November 2020 including confirmation of enrolment, detailed written submissions, GTE statement, bank statement, academic transcripts.

15. This is a situation in which the applicant has utilised the time since the delegate’s decision productively and has applied herself to her studies. The applicant provided a statement from Greenhill Education Group confirming that the applicant is currently enrolled in a Certificate III and IV in commercial cookery. Her attendance at class is over 95%. She has completed 20 units out of 25 for certificate 3 in Commercial Cookery and 26 out of 33 units for Certificate 4. Her practical classes have been delayed due to COVID-19 restrictions, but she is on track to complete these courses shortly.  The applicant is enrolled in a Diploma of Hospitality Management at the same institution and she is due to commence that course on 25 January 2021 and complete it on 11 July 2021. By this application she is seeking to remain in Australia to enable her to complete her studies.

16. The tribunal considers that the applicants academic record is good. She appears to have applied herself to her studies during her time in Australia. She is doing what a student on a student visa should be doing, studying in approved courses and progressing academically. These matters are in her favour.

17. It is also in her favour that she has continued her studies despite the delegates decision to refuse her application. This indicates that she is interested in the educational benefits of her course.

18. The tribunal considers that the proposed Diploma of Hospitality is consistent with her level of education and follows naturally from her certificates for in commercial cookery. Whilst it is at a level below her previous Bachelor of Arts degree, this matter is not adverse to the application in circumstances in which the current study is part of a series of associated courses and her Arts degree was completed more than a decade ago. Her current study appears to be her relevant to her previous employment in the hospitality industry in India where she worked as an assistant manager at a resort until 2018.

19. The tribunal notes the delegates concern in respect of the applicant's plans for her future at the time of her application. The delegate conceded that the applicant had not provided sufficient connexion between her proposed studies and her future plan. The tribunal considers that the applicant's evidence has allayed those concerns, noting that her written submissions included a detailed business plan for her proposed event business. The tribunal considers that the applicant’s studies are relevant to her future plan. In these circumstances, the tribunal considers proposed course is likely to assist the applicant to obtain employment or improve his employment prospects in her home country, or a third country. It follows that the Tribunal considers the proposed study is likely to increase the applicant’s remuneration in her home country.

20. The applicant's husband, the second secondary applicant also gave evidence confirming his support for the applicant commencing an event planning business upon her return home.

21. There is no evidence in relation to the applicant’s circumstances in her home country relative to others there.

22. The applicant states, and the Tribunal accepts that she has no concerns in relation to political or civil unrest in her home country.

23. The applicant states, and the Tribunal accepts, that she has no concerns in relation to military service commitments in her home country.

24. The applicant’s Husband resides with her in Australia. The applicant’s young son is in India being cared for by her parents in law. She has extended family in India including her parents and in laws. She speaks to them daily via telephone and social media. In circumstances in which she has resided in Australia for a relatively short period and is seeking to extend her stay by approximately 7 months, the Tribunal considers her immediate family in India, particularly her son, operates as a significant incentive to return home.

25. There is no specific evidence to suggest that the applicant has ties to Australia that may operate as a strong incentive for her to remain here. The Tribunal does not consider the mere presence of her Husband, the Secondary Applicant constitutes a strong incentive for her to remain here in circumstances in which her son remains in India. The applicant’s sister in law also resides in Australia, but there is no specific evidence to suggest this relationship is of such a nature that it operates as an incentive for her to remain in Australia.

26. The evidence in relation to the applicant’s economic circumstances is as follows. Neither she nor her Husband work in Australia. The family is financially supported by her sister in law’s family. They have an arrangement whereby they will repay the family upon their return home to India and establishment of their business. The applicants’ family holds property in India. They say they will inherit this property, however, the Tribunal does not consider a prospective inheritance is an effective incentive for them to return home and this does not weigh on the application. There is insufficient evidence to conclude whether economic factors operate as either an incentive for her to return home or remain here. Economic factors are neutral to the application.

27. The applicant’s evidence is that she has travelled to between Australia and India without any issues. She has not travelled home since arriving here, but this is not surprising given the outbreak of COVID-19 and ensuing travel restrictions. She appears to have complied with the requirements of his various visas since arriving in Australia. In these circumstances, the Tribunal makes no adverse findings in relation to her travel or immigration history.

28. The Tribunal does not consider the fact that the applicant applied for a student visa whilst onshore is adverse to the application. There may be many reasons for an applicant to apply for a visa whilst onshore. Making such an application is not prohibited by the Act or Regulations and it does not weigh against granting the application.

29. There do not appear to be any further matters relevant to the application.

30. The Tribunal has considered all the evidence before it. It considers the applicant to be a genuine applicant. She has allayed the concerns raised by the delegate by using her time productively and making good academic progress. On her current trajectory, she will complete her studies by July 2021 and the Tribunal considers she ought to be given the opportunity to do so. The Tribunal accepts there is value in these courses for her future career in the hospitality industry and event management. In all the circumstances, the application is granted.

    Secondary Applicants

31. Because the main Applicant meets the primary criteria, the Secondary Applicants also meet the criteria for the grant of a student visa.

32. 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).

33. Accordingly, the Tribunal is 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 appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

35. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    D Triaca
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

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

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

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

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

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

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.