Taranjeet Kaur (Migration)

[2021] AATA 984

Taranjeet Kaur (Migration) [2021] AATA 984 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Taranjeet Kaur
Mr Gurpreet Singh
Master Agamroop Singh
Master Ekamjot Singh

CASE NUMBER:  1918274

DIBP REFERENCE(S):  BCC2019/1753456

MEMBER:Fiona Zuccala

DATE:8 April 2021

PLACE OF DECISION:  Melbourne

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

· cl.500.212 of Schedule 2 to the Regulations.

Statement made on 8 April 2021 at 6.04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entry – applied for student visa soon after arriving on tourist visa – enrolment in lower-level courses in different subject area than previous study – future employment plans – husband, children, sister-in-law and her family in Australia – other family and husband’s property in home country – members of family unit – decision under review remitted

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

CASE
Saini v MIBP [2016] FCA 858

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 June 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (the applicant) is a 36-year-old citizen of India who applied for the visa on 9 April 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the 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 Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held on 11 December 2020 during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The second applicant is the applicant’s husband, the third and fourth applicants are her sons.  The applicants were represented in relation to the review by their registered migration agent.

6. In her current application for a student visa, the applicant commenced a Certificate III in Commercial Cookery in November 2019 which she has successfully completed.  She is currently undertaking a Certificate IV in Commercial Cookery which is due for completion in May 2021.  She is also enrolled to undertake a Diploma of Hospitality Management from July 2021 to January 2022.

   Reasons for refusal by the delegate

7. 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 Regulations as she is not a genuine applicant for entry and stay as a student. At that time the applicant was intending to undertake a general English course. The delegate, among other matters, was concerned that the presence of the applicant’s husband, children and sister-in-law was a close personal tie which may serve as a significant incentive for her to remain in Australia upon completion of her study. Further, given the applicant’s education background includes a Master of Science (IT), the delegate found that the applicant had failed to demonstrate the value of the degree to her career goals and was thus concerned that the current application is for the primary purpose of securing an extension of their stay in Australia.

   Evidence in support of application

8. The applicant provided a GTE letter, a response to request for information and various academic and other documents for her. The Tribunal has considered these documents, together with the applicant’s oral evidence at hearing.

9. The Tribunal has had regard to the applicant’s circumstances in her home country, her potential circumstances in Australia, the value of the course to the applicant’s future, her immigration history and other matters raised by the applicant at hearing.

10. The Tribunal raised with the applicant that the matter before it is whether she meets the requirements of cl.500.212. It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that she is a genuine applicant for entry and stay as student.

11. The applicant told the Tribunal that she would like to secure a job in the food sector and that there were plenty of jobs available at international hotels.  Ideally, she would like to be a chef at a 5-star restaurant. 

12. The applicant outlined that she had researched possible employment in this sector and found that she could double what she was earning in her previous role as a child development worker.  She chose to study in Australia as she believes that the courses in Australia were of a very high quality and were in demand in India.

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

    What is the genuine applicant criterion?

14. 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. The issue in the present case is whether the applicant meets cl.500.212(a); that is, whether the applicant is a genuine applicant for entry and stay as a student in Australia.

15. 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.

16. The Regulations direct the Tribunal to consider an applicant’s intention as they are at the time the Tribunal makes its decision.[1]  The Tribunal must have regard to the applicant’s circumstances, immigration history, record of compliance with the conditions of any previous visas issued, and any other relevant matter. For the reasons outlined below, the Tribunal has decided that the delegate’s decision in refusing to grant the applicant a student visa ought to be remitted for reconsideration.

    [1] Saini v MIBP [2016] FCA 858, [30]: ‘What is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.’

17. 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.

18. 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.

    Is the applicant a genuine applicant?

19. The Tribunal has considered the above criteria in the applicant’s case.  On balance, the Tribunal considers that the applicant is a genuine applicant for entry and stay as a student in Australia.  In coming to this conclusion, the Tribunal has placed particular weight on the following facts:

    a)The evidence indicates that since applying for the Subclass 500 (Student) visa to the date of the hearing, the applicant has changed direction and no longer wants to study for an English language course but has instead chosen to study commercial cookery and hospitality management.  The Tribunal considers this change of direction from an English Course to a more practical Certificate III and Certificate IV in Commercial Cookery and a Diploma of Hospitality Management to be reasonable and likely to enable the applicant to pursue her stated goal of employment in the food and hospitality sector in her home country.

    b)The applicant, with her husband (the second applicant) and sons (the third and fourth applicants) live with her husband’s sister and family.  Her sister-in-law pays all of their expenses.  The Tribunal is concerned that the applicant has a close personal tie with her sister-in-law and is of the opinion that her sister-in-law’s support of the applicant’s study in Australia is mutually beneficial. The applicant gave evidence that both she and her husband provide child-care for the sister-in-law’s children while her sister-in-law and her husband are working.  Nonetheless, the Tribunal notes that the applicant’s parents, siblings and in-laws remain in India.  Further, the applicant stated that her husband has significant property interests in her home country, being 12 acres of family land.  On balance, the Tribunal is of the opinion that although the applicant does have ties to Australia, she has significant family and financial ties to her home country and these would serve as an incentive for her to return to her home country.

    c)The applicant told the Tribunal that her previous role as a Child Development Officer involved lots of cooking and preparing food for the children.  She also stated that cooking is a passion of hers and this is the reason that she left the English course and decided to pursue studies related to food.

    d)The Tribunal notes that the applicant has no concerns that there are political and civil reasons or military commitments in her home country which would present as an incentive for her not to return to her home country.

    e)The applicant had previously been in Australia in 2017 on a visitor visa.  She then arrived on another visitor visa on 15 March 2019 and applied for a student visa a few weeks later on 9 April 2019.  The applicant is entitled to apply for a student visa while onshore and the Tribunal does not make any adverse findings in this regard.

    f)The applicant has completed Certificate III in Commercial Cookery.  Her overall education history, suggests she is likely to complete the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management Diploma successfully.

20. On the basis of the above, the Tribunal is satisfied that the applicant meets cl.500.212(a).

21. 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.  It follows that the Tribunal considers it appropriate to remit the application of the second, third and fourth applicants.

    DECISION

22. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    F Zuccala
    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.