Sukhwinder Kaur (Migration)

[2021] AATA 5257

Sukhwinder Kaur (Migration) [2021] AATA 5257 (16 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs. Sukhwinder Kaur
Mr. Tejinder Singh
Mr. Agamveer Singh Jhand

CASE NUMBER:  1907803

HOME AFFAIRS REFERENCE(S):          BCC2018/5193331

MEMBER:P. Adami

DATE:16 December 2021

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 16 December 2021 at 4:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – enrolled in two master’s courses after completing master’s in home country – discontinued study when visa refused, worked in unrelated field and enrolled in lower-level courses in new subject area – members of family unit – Australian-born child secondary applicant will be close to automatically gaining citizenship at end of visa period – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 500.212(a), 500.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 15 March 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 21 November 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that the primary applicant intends genuinely to stay in Australia temporarily as a full time student.

4. On 23 April 2020, the Tribunal formally wrote to the review applicants pursuant to section 359(2) of the Act, inviting the applicants to provide further information to the Tribunal, including information as to the primary applicant’s enrolment and being a genuine applicant for entry and stay as a student. The invitation was sent to the then review applicants’ registered migration agent Mr. Dinesh Khanal of Oceania Education Solutions, being the contact details provided by the primary applicant in her 01 April 2019 ‘Application for review’.

5. On 07 May June 2020, the primary applicant filed with the Tribunal a completed ‘Request for Student Visa Information under s.359(2) of the Migration Act 1958’ and other material in support. On 14 October 2020 further material was filed in support, and on 15 October 2020, the applicants’ 07 October 2020 appointed authorised representative and recipient Mr. Sandip Khanal filed a submission in support with the Tribunal.

6. On 15 October 2020, the primary applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal applicants were assisted at the hearing by their migration agent, Mr. Khanal. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 primary applicant intends genuinely to stay in Australia temporarily as a full-time student.

2. 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?

3. In considering whether the primary 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.

4. 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 primary applicant’s circumstances as a whole, in reaching a finding about whether the primary applicant satisfies the genuine temporary entrant criterion.

5. The primary applicant is a 39 year old Indian female who travelled to Australia on 12 July 2014. The secondary applicants are the primary applicant’s husband and 6 year old son (born [date]). The primary applicant told the Tribunal that her husband arrived in Australia in 2008 to study. The delegate in their 15 March 2019 decision states that the primary applicant arrived holding a Student (Class TU subclass 572) visa as a Subsequent Entrant. This visa was valid until 29 September 2014. The delegate goes on to state that the applicant was granted a Temporary Work (Class TU subclass 457) visa on 27 November 2014, as a dependant. This visa was valid until 27 November 2018. The primary applicant told the Tribunal that the now secondary applicant, Mr. Tejinder Singh, was employed as a customer service manager. The primary applicant also told the Tribunal that the secondary applicant’s contract ended in November 2018. The primary applicant told the Tribunal that her husband then worked as a taxi driver from July 2019 to at least the date of the hearing, with the work hours varying each week.

6. On 21 November 2018, the primary applicant applied for a Student (Temporary) (Class TU) (subclass 500) visa, which was refused, as per the delegate’s Decision Record dated 15 March 2019. It is this refusal which gives rise to this review application before the Tribunal.

7. The Tribunal has read and had regard to the documents provided by the applicants to the Department. These in part include the primary applicant’s completed ‘Application for a Student Visa’ dated 21 November 2018; the primary applicant’s 20 November 2018 GTE Statement; the primary applicant’s 21 February 2019 GTE Statement; New South Wales Birth Certificate issued to Agamveer Singh Jhand registering his birth on [date] at the Nepean Hospital, Kingswood.

8. The Tribunal has read and had regard to the documents provided by the applicants to the Tribunal. These in part  include; a copy of the delegate’s Decision Record dated 15 March 2019; a COE issued to the primary applicant for the Certificate IV in Commercial Cookery with a course start date of 21 July 2020 and a course end date of 17 January 2022 at the Canberra Business and Technology College (CBTC); a COE issued to the primary applicant for the Diploma of Hospitality Management with a course start date of 01 February 2022 and a course end date of 01 August 2022 at the CBTC; primary applicant’s payslip for 21 September 2020 to 27 September 2020 at Vapiano restaurant; 06 October 2020 letter of Priyanka Arora, Student Support at CBTC confirming the primary applicant’s enrolment and attendance; 24 April 2020 letter of Dibyendu Karmakar, Assistant Manager of Vapiano restaurant; primary applicant’s completed Request for Student Visa Information; Mr. Sandip Khanal’s Submission dated 15 October 2020.

9. The primary applicant in her completed Request for Student Visa Information lists that she completed a Bachelor of Arts in September 2003, a Postgraduate Diploma in September 2004, and a Master of Business Administration in January 2008 prior to arriving in Australia.

10. The primary applicant lists that she worked as a self-employed tuition teacher between March 2008 and March 2011 earning approximately $7,000 per year prior to arriving in Australia. Given the length of time since engaging in this type of work and the primary applicant’s more recently acquired skills, the Tribunal does not consider that work acts any employment tie which serves as a significant incentive to return home.

11. At the time of the primary applicant’s November 2018 application for a Student visa, the primary applicant was enrolled in a Master of Professional Accounting (MPA) and a Master of Business Administration (MBA). In the applicant’s application for a student visa where she was asked to give details of the type of employment the applicant will be seeking at the completion of their course, the primary applicant answered, “Hope to work in the field of business and accounting upon completion of the course.”

12. In her 20 November 2018 GTE Statement filed with the Department, the primary applicant set out her reason pursuing the MBA and MPA. The primary applicant stated,

    I have successfully completed my Master of Business Administration from Sikkim Manipal University, India. Although, I achieved my post-graduate degree in India, I still lack practical experience and advanced knowledge in the same field. I was in search of the course that would mold me in the practical world and gain the global exposure both at the same time. With the dream of gaining the international knowledge and global experience, I decided to pursue my post-graduate studies again in Australia. With an intension to learn all the areas of accounting, I chose this dual degree MBA and MPA. Lately, I heard from my friend who works in renowned accounting firm about the software tools and strategies that are being implemented to ease the task of accountants. I realized I have been left behind with no hands-on knowledge. Inspired by the conversation with my friend, I decided to study new methodologies and approaches that would be the future. I started to explore about the programs and that is when I came across Master of Professional Accounting and Master of Business Administration course that has helped many to excel in the professional accounting practice and go further and become a successful accountant. With my current knowledge on accounting, I preferred to choose Master of Professional Accounting as it would help me specialize in the field of accounting. Further, I am also willing to acquire an MBA degree because of its higher value and input it can give me to develop my business administration, leadership and managerial skills. Believing the qualification of both MPA and MBA will be very productive in creating the employment opportunities back in India once I complete this course. I also believe that the dual degree will be the ground for starting my business career. [Original]

13. In her 21 February 2019 GTE Statement filed with the Department, the primary applicant clearly repeats her intention to complete the double master’s study stating,

    With my current knowledge on accounting, I preferred to choose Master of Professional Accounting as it would help me specialize in the field of accounting. Further, I am also willing to acquire an MBA degree because of its higher value and input it can give me to develop my business administration, leadership and managerial skills and at the same time it also related to Accounting where I am getting credit of 8 subjects of accounting units and only require to study 4 subjects to complete the MBA degree. Believing the qualifications of both MPA and MBA will be very productive in creating the employment opportunities back in India once I complete this course. I also believe that the dual degree will be the ground for starting my business career.

    …

    After completion of my course, I would like to return to my country India and work in one of the big accounting firms, excel the art of accounting, exhibit myself in critical real-time scenarios and handle tasks with ease. Once I have mastered my hands-on skills by working in these company, I would like to open an accounting firm in India. I am confident with my future plans as I seek to achieve my target by sourcing jobs to my fellow people in India, implementing new strategies learnt at Holmes and the accounting firm where I am likely to work in the future, and thus be a successful entrepreneur. Like any other consulting firm, I would like to hire accountants in my start-up, train them with expert knowledge, help people and grow business.

    The primary applicant also writes of the support the secondary applicants will give, motivating her to complete the “course on time.” The primary applicant concludes her GTE submission, “As soon as I complete my master’s degree from Holmes Institute, I will return to my country with my husband and son. I would like to request the department to give me an opportunity to complete my degree so that I can have a better future.”

14. The primary applicant told the Tribunal that she had an intention to study when the secondary applicant was granted his subclass 457 visa, but without planning, she fell pregnant. The applicant explained that she focused on her son, and when he was 3 years old and a little grown up, she was keen to study with the visa about to expire, so enrolled in the MBA. The applicant then told the Tribunal that her application for a student visa was refused which shattered her dream.

15. In his 15 October 2020 Submission filed with the Tribunal, Mr. Khanal explains,

    During the time of visa application, Mrs Sukhwinder Kaur was employed as Office Admin since November 2017. She had a master’s degree in India and wanted to do another master’s degree in Australia mostly focused in Accounting qualification. She was initially enrolled in a dual degree program (Master of Professional Accounting and then Master of Business Administration). The course was starting on 12/11/2018. After the course commenced, she was not able to have a balance between her work, family and her studies. So to concentrate on her studies, she had to leave the office admin job and was looking for some casual opportunities.

    13. She was determined to continue the accounting studies and then in March 2019, after finishing her first semester, she received a visa refusal decision. This led to her losing confidence in containing with her accounting studies and discontinued these courses after the 1st semester.

16. Mr. Khanal then explains that after the primary applicant lost he office admin role, she found employment opportunities in a commercial kitchen. Mr. Khanal states,

    She was interested to have a career in commercial kitchen as she had previously worked as a Pizza Chef with Rabin Patel and as a cook with Atlantic Fish and Chips.

    15. The job of cook that she received at Vapiano Canberra, which was a casual position in the beginning, offered her more hours of work around May 2019. Therefore, the whole family decided to then move to Canberra and focus on their careers. She continued her work as a cook. With increased interest in the hospitality and cookery, she then decided to take a formal qualification to enhance her skills. She is now enrolled to complete these courses.

17. The Tribunal considers that the primary applicant’s desire to study the currently enrolled Certificate IV in Commercial Cookery and proposed Diploma of Hospitality follows her work experience and not the other way around, and the Tribunal places weight on this in concluding that she is not a genuine temporary entrant.

18. The Tribunal also does not consider the primary applicant's current study is consistent with her successfully completed levels of education or fields of study. Certificate IV in Commercial Cookery and proposed Diploma of Hospitality is at a level below her Master of Administration degree (from 2008) on the Australian Qualifications Framework (AQF) (on a scale of 1-10, a master’s degree is at level 9 and a Diploma is at level 5). As noted in para. 19-23 above, the primary applicant proposed to study a Master of Business Administration and a Master of Professional Accounting. Having studied one semester, she then found work in a pizza shop and fish and chip shop, thereafter, finding working at Vapiano restaurant in Canberra. According to her completed Request for Student Visa Information, the applicant studied a Bachelor Arts, a post graduate diploma and an MBA in India between August 2001 and January 2008. The applicant has now declared a desire to become a chef upon her return home to India. The Tribunal considers that given her age and formal education history, her decision to complete the Certificate IV and Diploma, whilst it will give some new skills and may assist her in obtaining employment in a kitchen as a chef, is beyond the reasonable changes to her career/study pathway.

19. The Tribunal is mindful that should the applicant complete the Certificate IV in Commercial Cookery and proposed Diploma of Hospitality in August 2022, she will have stayed in Australia approximately 8 years, and her husband will have stayed approximately 14 years. The applicant arrived in Australia with a Master of Business Administration degree. Whilst the primary applicant may obtain more skills and therefore be generally said to be more employable upon completing the Diploma course, the Tribunal considers the primary applicant is seeking to use the currently enrolled Certificate IV and proposed Diploma as a means for maintaining an ongoing residence in Australia.

20. The primary applicant states in her completed Request for Student Visa Information that she is studying in Australia rather than India or the surrounding region the following way, “We are currently in Australia and my husband has alraedy done this study. So according to our experience, I will have more opportunity and experience to gain during my course here in Australia. Australian qualifications are world class and renowned and I can possess intangible like sikks such as adaptability, flexibility and enthusiasm to learn and to face challenges along the way. Here, I can also improve my command of English language which would not happen much in India.” [Original] The primary applicant did not propose anything more substantial regarding this general claim. Therefore, the Tribunal places little weight that the primary applicant cannot undertake similar study in her home country. There is no evidence before the Tribunal that the primary applicant has meaningfully considered in doing so.

1. Mr. Khanal explains the reason to study in Australia in his October 2020 submission as follows, “Mrs Sukhwinder Kaur was in Australia and was already exposed to the Australian study environment. Therefore, she also wanted to complete her formal qualification here in Australia as it would present her with greater exposure to international work cultures like the exposure to world class cuisines, the flexibility and availability of recourses and choice of study materials.” The Tribunal places little weight on the general reasons proffered given there is no meaningful way to weigh the submission without more material in this regard.

2. There is no evidence regarding the primary applicant’s circumstances in her home country relative to others in that country and the Tribunal makes no findings concerning the primary applicant in that respect.

3. In her completed Request for Student Visa Information, the primary applicant lists that her husband and son live with her in Australia, and that her parents and a brother live in India, and 2 bothers live in the United States of America. In her completed Request for Student Visa Information the primary applicant states that she usually contacts her parents almost on a daily basis. The primary applicant confirmed this at the Tribunal hearing. Given the length of time in Australia, and also the presence of her husband and son in Australia, the Tribunal does not consider that the primary applicant’s parents or siblings act as a significant incentive for her to depart Australia. The Tribunal also considers that the presence of the primary applicant’s husband and son in Australia acts as a strong incentive to remain, and that she has been able to maintain family relations with her parents visiting Australia or using phone technology to communicate daily.

4. The primary applicant lists in her completed Request for Student Visa Information that she and her husband have agricultural land worth $416,000; a plot worth $10,000; and cash in India worth $30,000. When asked, the primary applicant clarified that the agricultural land was in her father’s name and was expected by way of inheritance. The Tribunal does not consider the property in India operates as an incentive to return there. Property may be readily sold or otherwise converted into cash. The primary applicant did not propose that the currently expected inheritance required her to return home to India.

5. The primary applicant's lists her and the secondary applicants’ expenses in Australia at approximately $32,200 per annum. The primary applicant lists that between November 2017 and November 2018, she earned $62,000 in an office administrative role. The primary applicant included a pay slip for the period 21 September 2020 to 27 September 2020 in which she earned $525.79 net. There is no further recent pay information before the Tribunal. The Tribunal notes that the primary applicant told the Tribunal that her husband worked in Australia as a customer service manager, which contract ended November 2018. Since July 2019, the second named applicant has worked as a taxi driver earning different, but not specified, amounts each week. The Tribunal considers the applicants are living as though they are permanent residents in this regard. Given the applicants’ economic circumstances in Australia, the Tribunal considers this acts as a significant incentive not to return home.

6. The Tribunal is comforted in this view given the applicant states in her completed Request for Student Visa Information that her expected remuneration in India or a third country using the qualifications she will gain from the Certificate IV and Diploma as a chef is between $2,000-$4,000. The applicant did not provide the Tribunal any evidence to support this anticipated income figure. Although a dated employment, in her completed Request for Student Visa Information the primary applicant lists that she worked as a self-employed tuition teacher 0between March 2008 and March 2011, earning $7,000. In paragraph 18 of his October 2020 submission, Mr. Khanal states in part, “She is also supported financially by her parents and her brothers who send funds when needed through wire transfers.” The Tribunal considers that between the applicants and her family, the primary applicant has been able to maintain their lifestyle in Australia. For example, the secondary applicants have not departed Australia, awaiting the primary applicant’s return after her studies. The Tribunal considers that the primary applicant’s economic circumstances present as a significant incentive not to return to her home country.

7. In the Request for Student Visa Information, in the question about community ties in her home country, the primary applicant states, “I was independent tutor in my home country by profession. Also to help the poor, I also gave classes for free of cost as a contribution to the community for those who wanted to learn but could not afford to pay.” The primary applicant’s community ties in Australia are described as follows, “Me and my family contribute locally through working in the community, paying our taxes and having a good relationship with local community in ACT.”  The Tribunal does not consider that these stated community ties in India and Australia, amount to strong ties in concluding for or against the applicant being a genuine temporary entrant.

8. In the completed Request for Student Visa Information, the primary applicant lists that she has never travelled home to India. The primary applicant confirmed this at the Tribunal hearing. The primary applicant stated her parents visited her in Australia every year, and given she had a young baby this was easier. The Tribunal is mindful that should she wished to have returned home after March 2020, the Covid-19 situation gave rise to an inability to travel. The primary applicant does not list travel to any other country in the last 10 years. Notwithstanding the primary applicant’s explanation, the Tribunal considers that the primary applicant’s lack of travel since arriving in Australia in July 2014 demonstrates that she is using the student visa program to maintain residence in Australia. The Tribunal considers this factor weighs heavily against concluding the primary applicant is a genuine temporary entrant for study in Australia.

9. The primary applicant states in her completed Request for Student Visa Information that there are no military service commitments that would present as a significant incentive for her not to return to her home country, and there is no political or civil unrest in her home country that may induce her to apply for a student visa as a means of remaining in Australia indefinitely.

10. The primary applicant has disclosed little concerning travel history. There is no evidence that the primary applicant has been denied a travel visa to another country, or that she has breached an Australian visa. The primary applicant has not had a visa cancelled or considered for cancellation. The primary applicant has not applied for any other Australia visa where a decision on that application has not yet been made. The primary applicant discloses that in September 2012, she was refused a subclass 676 visa to travel to Australia to visit her husband, the now named second applicant. This visa allowed travel for a fixed period, and the Tribunal places no weight on the refusal.

11. The primary applicant has not expressed an interest in seeking permanent residency or applied for permanent residency. However, the Tribunal considers that it is relevant that the third named applicant Master Agamveer was born in NSW, in [year]. That is over 6 years ago. If he is permitted to reside in Australia until his 10^th birthday, Master Agamveer will automatically become an Australian citizen having been ordinarily resident in Australia throughout the period of 10 years beginning on the day he was born- see s12(1)(b) Australian Citizenship Act 2007 (Cth). At that moment, the primary and second named applicants immediately become eligible to apply for visas in their capacity as the parents of the third named applicant.[1] This provides a permanent residence pathway for the applicants, notwithstanding the primary applicant has not sought permanent residency in her own right.

    [1] The primary applicant and second named applicant may be eligible to apply for Subclass 143 or 173 (Contributory Parent) visas- see Schedule 2, Migration Regulations 1994 (Cth)

12. If the applicants were to be granted their visas, the primary applicant, on the information currently before the Tribunal, is expected complete her Certificate IV in Commercial Cookery in January 2022, and thereafter the Diploma of Hospitality Management in August 2022. Master Agamveer will be turning 7 years old later in that August of 2022. The Tribunal is mindful that the primary applicant and her husband may be motivated to extend their stay in Australia until Master Agamveer reaches 10 years of age so he will automatically become an Australian citizen. Were the primary applicant to seek to study beyond the expected August 2022 Diploma course end date and apply for a further Student visa; any adverse decision by the Minister, then the Tribunal, then the Federal Circuit Court, and even a possible appeal to the Federal Court in turn, could see Master Agamveer attaining 10 years of age.

13. The Tribunal places a little weight in this regard and not a lot of weight, as the primary applicant has not stated such an intention to remain in Australia until August 2025. Indeed, the primary applicant states an intention to return home after the Diploma in August 2022. The Tribunal places more weight against concluding the primary applicant is a genuine temporary entrant as Master Agamveer has lived all his life entirely in Australia. According to the completed Request for Student Visa Information, the primary applicant has not returned home to India since arriving in August 2014. There is no evidence that Master Agamveer has returned to India since his birth in [year]. The second named applicant arriving in Australia in 2008. The Tribunal considers that as time passes, the applicants’ ties to Australia grow stronger not weaker.

14. In his 15 October 2020 submission, Mr. Khanal states, “She is the only daughter in her family and is very close to her parents. Her parents have been coming to Australia to visit and stay with them from time to time. She has close ties with her brothers in India and the USA and communicates with them regularly. She is also supported financially by her parents and her brothers who send funds when needed through wire transfers.” The Tribunal places little weight in the submission that the applicant has close ties to her parents and siblings. The second named applicant arrived in Australia in 2008 to study; the primary and second named applicants married in May 2011 according to Master Agamveer’s NSW Birth Certificate; the primary applicant arrived in Australia in July 2014 as a secondary applicant on her husband’s then held Temporary Work subclass 457 visa. According to the delegate’s March 2019 decision, the now primary applicant applied for her Student Visa on 21 November 2018, prior to the 27 November 2018 expiry of the then held Temporary Work subclass 457 visa. The Tribunal considers that the primary applicant’s visa, study and travel history does not lead it to conclude that the primary applicant has a close relationship with her parents or siblings.

15. Having considered all the information before it, on balance the Tribunal is not satisfied that the primary applicant intends genuinely to stay in Australia temporarily. It is difficult to reconcile that a proposed approximate 8 year stay for the primary applicant in Australia, falls within the meaning of temporary. This is harder to reconcile for the second named applicant given his arrival date. 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. The Tribunal is concerned that the primary applicant is using the student visa program primarily in order to maintain ongoing residence in Australia. Accordingly, the primary applicant does not meet cl.500.212(a).

16. Based on the above, the Tribunal is not satisfied that the primary applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

17. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The primary applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

18. As the Tribunal has found that the primary applicant does not meet the criterion for the grant of a Student visa, it must affirm the decision under review that the secondary applicants do not meet cl.500.311, as they are not members of the family unit of a person who satisfies the primary criteria in cl.500.211. The secondary applicants do not make any claims or provide evidence that they satisfy the primary criteria.

DECISION

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

   P. Adami
   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.