Sunny Kumar (Migration)

Sunny Kumar (Migration) [2023] AATA 224 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sunny Kumar
REPRESENTATIVE:  Mr Suraj Khatri (MARN: 0747797)
CASE NUMBER:  2207109
HOME AFFAIRS REFERENCE(S):          BCC2020/1671882
MEMBER:Dominic Triaca
DATE:12 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 January 2023 at 3:27pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant had spent a considerable amount of time in Australia – applicant was not a genuine applicant for entry and stay as a student –an economic incentive to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 April 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 June 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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).
The applicant appeared before the Tribunal on 21 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was assisted in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)
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?
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.
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.
The applicant is 37 years old. He is a citizen of India. He first arrived in Australia in 2014 with his then wife. He is now divorced. He has resided here since that time on temporary and associated bridging visas. He applied for a student visa, the subject of this application on 3 June 2020. On 27 April 2022 a delegate of the Minister for Home Affairs refused his application (delegate’s decision). He subsequently applied to the Tribunal for a review of the delegate’s decision.
The Tribunal has read and had regard to the documents provided by the applicant to the Department and the Tribunal including his written response to the Tribunal’s invitation to provide further information pursuant to s.359(2) of the Act, the delegate’s decision, the original visa application, Confirmation of Enrolment documents, study evidence including payment of fees and letter of offer 3 June 2020.
The applicant is enrolled in a General English course at the Hawk Institute that commenced on 10 January 2022 and is due to be completed in March 2023. He says that upon completion of this course he intends to remain in Australia and undertake a motor mechanic or related courses. he did not know the exact course he would undertake. He has never worked or studied in that industry before.
The applicant says that his interest in the automotive industry stems from his brother who is a mechanic. He says that since his divorce he has been inspired by his brother to pursue a career in the automotive industry. The applicant says that he assists him from time to time. The applicant says that he will eventually return to India but did not nominate an exact date for his return. It weighs against the application that the applicant’s future plan is vague and does not appear to be well thought out beyond the concept of studying to be a motor mechanic. He says that he may ‘search google’ and do a course in India upon completion of further study here which suggests he is quite uncertain as to what his future holds.
The Tribunal is concerned that the applicant has resided in Australia for over 8 years without displaying any real interest in pursuing education. The Tribunal considers that if he genuinely saw benefits in pursuing education he would have done so well before now. At best, he has spent 8 years in Australia without completing any course. At best he is part way through a General English course. This is an underwhelming return for 8 years in Australia. Given his track record, the Tribunal does not have any confidence that he would complete further study of automotive courses if given the opportunity to do so.
The Tribunal considers that the applicant can pursue his current general English studies at home if he so desires. There is nothing to suggest that English language skills and knowledge cannot be obtained in India through formal education or in an online environment. Whilst I accept that there are some inherent benefits to learning English in an English-speaking environment such as Australia, the Tribunal considers that by now, the applicant has had the benefit of living in Australia for 8 years and has had every opportunity to learn English in this environment. It is not convinced that he requires a further extended period in Australia in which to do so.
The applicant has advanced reasonable reasons for pursuing the study of English in Australia, rather than his home country. This is in his favour. However, the Tribunal does not place much weight on his reasoning in circumstances he has had ample opportunity to study English during his time in Australia and failed to do so until the last year. In this regard the Tribunal notes that the applicant’s evidence is that he was unable to study between 2020 and 2022 due to the COVID-19 pandemic and his not being ‘very techno savvy could not attend online classes’. The Tribunal does not accept this is the case. Whilst the COVID-19 pandemic may have made studying difficult for a period, the Tribunal does not accept that the applicant was unable to pursue any form of study for an extended period. Further, the applicant displayed no interest in study between 2014 and 2019 prior to the onset of the pandemic.
The Tribunal accepts that successful completion of the English course may improve the applicant’s employment prospects at home or in a third country. It follows that it may also increase his remuneration at home. However, these are minor considerations in circumstances in which the applicant has not placed significant weight on obtaining such qualifications during his time in Australia, waiting many years before enrolling in any form of study.
Successful completion of automotive related courses may be beneficial to the applicant’s overall employment prospects and future remuneration. However, the Tribunal is reluctant to place much weight on this prospective study where the applicant is unable to identify the specific course he intends to study, and the Tribunal has no confidence that he would ever complete the course.
There is no specific evidence in relation to the applicant’s circumstances in his home country relative to others there. The applicant states, and the Tribunal accepts, that he has no concerns in relation to military service, civil or political unrest at home. He seems to have a good understanding of living in Australia, which is not surprising. He has a reasonable understanding of his English course and course provider, however it is difficult to assess his understanding of his proposed further study as he is not enrolled in it.
The applicant’s parents and sister reside in India. He has returned twice since first arriving here for holidays. The Tribunal accepts he as a good relationship with his family and is in regular contact with them. However, he has resided here for 8 years and is seeking to extend his stay. In those circumstances the Tribunal does not consider his family ties are operating as a significant incentive to return home.
The Tribunal is concerned that the applicant has two brothers residing in Australia. He resides with one brother who is an Australian permanent resident. Whilst the Tribunal accepts that the applicant has not applied for permanent residency in Australia, it seems to the Tribunal that he has a good relationship with his brother. Further, the applicant reports his ex-wife and daughter remain in Australia. He is currently in family court proceedings in relation to that relationship. He says he is unable to see his child at present but would like to and this is the purpose of Court proceedings. The Tribunal considers that the combined presence of his brothers and his child given him strong incentives to remain in Australia indefinitely.
The Tribunal is also concerned by the applicant’s economic circumstances in Australia, specifically his ability to earn Australian dollars through the course of ordinary employment. Whilst the Tribunal is mindful of the difficulty in assessing comparative economic circumstances between countries where there may be disparate costs of living, the evidence here suggests that the applicant’s economic circumstances in Australia are significant. The applicant’s evidence is that he earns approximately $40,000 AUD per annum as a food delivery driver and confirmed his costs of living in Australia are approximately $18,000 AUD per annum. The Tribunal considers this is a significant difference and it is likely that the applicant sees an economic advantage in extending his stay in Australia to enable him to earn such an income as long as possible. Consequently, the Tribunal finds his economic circumstances in Australia are such that they operate as a significant incentive to remain here.
The Tribunal makes no adverse findings in relation to his travel or immigration history.
There do not appear to be any other relevant matters.
The Tribunal has considered all the evidence before it. The applicant has been unable to allay the Tribunal’s concerns. It appears to the Tribunal that the purpose of the application for a student visa is to enable the applicant to maintain an ongoing residence in Australia for a combination of family and economic reasons. The applicant is proposing to extend his stay to at least a decade, perhaps longer depending on the actual automotive courses he ultimately enrols in. It is difficult to reconcile such a lengthy stay with the meaning of temporary.
On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl 500.212(a).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl 500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dominic 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;
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.

[2023] AATA 224

12 January 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice