Veenu (Migration)

[2019] AATA 1323

Veenu (Migration) [2019] AATA 1323 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Veenu
Sahil Bawa

CASE NUMBER:  1722353

HOME AFFAIRS REFERENCE(S):           BCC2017/1029736

MEMBER:T. Quinn

DATE:16 April 2019

PLACE OF DECISION:  Melbourne

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

·Clause 500.212 (a) of Schedule 2 to the Regulations.

Statement made on 16 April 2019 at 1:27pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change of study and career path – no study gap – value of course to applicant’s future – goal of opening a restaurant – detailed plan – consistent with current level of education – excellent academic progress – personal ties to home country – decision under review remitted

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

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 and Border Protection (‘the delegate’) on 6 September 2017 to refuse to grant the applicants’ Student (Temporary) (Class TU) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 15 March 2017 (‘the application’).   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 primary visa (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. On 6 September 2017, the delegate refused to grant the visa on the basis that the primary applicant did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’), namely that the applicant was not considered to be a genuine applicant for entry and stay as a student. Consequently, the secondary applicant’s application must also be refused. A copy of the delegate’s decision was provided to the Tribunal with the applicants’ review application.

4. On 19 September 2017, the applicants applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(2) and 347 of the Act.

5. More than 18 months have elapsed since the making of the delegate’s decision and the applicants’ application for review with the Tribunal. In coming to consider the merits of the application for review, the Tribunal recognises the applicants’ personal circumstances bearing upon their visa applications may have changed during that time. The Tribunal considered that it would be beneficial for the applicants to provide updated and further information to the Tribunal for the purposes of determining the outcome of their application for review. To this end, on 18 February 2019, the Tribunal wrote to the applicants, pursuant to section 359(2) of the Act, inviting them to provide information in writing about the course(s) of study the primary applicant was undertaking and her entry and stay in Australia as a student (‘the s359(2) letter’). The applicants responded to this invitation on 3 March 2019.

6. The applicants were assisted in relation to the review by their registered migration agent.

7. The applicants were listed for hearing before the Tribunal on 1 April 2019, however, upon regarding all the information before it, including the Department File, all information and evidence provided by the applicants to the Tribunal prior to the day of hearing, the Tribunal determined that a hearing was not necessary.

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

   STATUTORY FRAMEWORK

9. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.

10. 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?

11. In considering whether the applicant satisfies clause 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’ (‘the Direction’), made under section 499 of the Act. The Direction 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.

12. 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.

13. The Direction is a lawful direction of the Minister made in accordance with section 499 of the Act. The Tribunal is therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicants’ case.[1]  Accordingly, the terms of the Direction and their application to the applicants’ case have been considered in relation to material before the Tribunal.  The Tribunal, however, recognises that it is an independent statutory body.  It must therefore reach its own conclusions as to the merits of the applicants’ case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate.

    [1]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The primary applicant is a 29 year old female Indian citizen who, according to the delegate’s decision, first arrived in Australia on 5 March 2015 on a TU573 Higher Education Sector visa. 

15. Prior to coming to Australia, the primary applicant completed secondary school in 2010 and a Bachelor of Business in 2013 in India.[2] 

    [2] See primary applicant’s response to the s359(2) letter filed 3 March 2019.

16. The primary applicant initially arrived in 2015 to complete a Masters of Business Administration (‘MBA’); however, she found this too difficult.  The primary’s applicant’s submissions received by the Tribunal on 28 March 2019 (“the March Submissions’) gave significant detail to what occurred after her arrival in Australia.  She submitted that it was the first time she had travelled to any other country, she was heavily influenced by her father in choosing the MBA and struggled to focus on her studies due to homesickness and the change in education system.  She describes feeling lost in the crowd and states that student support services encouraged her to continue so she persisted with the study and sat all of her exams but failed all of her subjects.  She felt panicked, stressed and isolated in Tasmania.  She was concerned about her family’s reaction to her failing the MBA so kept this a secret.  She had a friend in Melbourne who helped her to change her study and career path.  The Tribunal accepts this explanation and allows for reasonable changes to career or study pathways.

17. After ceasing the MBA, the primary applicant then completed a Certificate III and IV in Commercial Cookery followed by a Diploma of Hospitality Management and is currently studying a Bachelor of Business, in compliance with condition 8516 of her Higher Education Sector visa.[3]  There have been no gaps in her study or enrolment.  The Tribunal accepts this evidence and has given it consideration in coming to its decision.

    [3] Ibid.

18. The primary applicant describes a goal of starting her own restaurant and believes that the Bachelor of Business will assist her to operate efficiently and effectively.[4]  In the March Submissions, she explains a desire to introduce new and unique techniques and skills in her business in India that she has learned in Australia such as implementing a loyalty card system.  She also provides a detailed explanation of the likely market for her business in India.  The Tribunal accepts this and considers that the current degree is relevant to and will assist her to obtain and improve her employment prospects in her home country.  Although this study is not at the Masters level intended when she initially obtained her visa, it is not lower than her current level of education obtained in India and the Tribunal considers that in circumstances where the primary applicant is learning in her second language, in another country and with a new career goal, the study is sufficiently consistent with her current level of education. 

    [4] Ibid.

19. The delegate was concerned about the primary applicant’s failure to return home after in excess of two years onshore.  In the March Submissions, the primary applicant explained that she did not return to India because she was so determined to complete all the courses on time and did not want to impact her studies, in addition to having hidden her situation from her family.  However, after starting her Diploma she faced her father and her family and visited India in September 2017 for 52 days.[5]  The Tribunal accepts this explanation.

    [5] Ibid.

20. The primary applicant has her parents, four sisters, her parents in law and brother in law in India.  She talks to her immediate family on a daily basis via telephone, social media and sometimes video calls.[6]  In addition, she describes a cultural obligation upon her to return to India to care for her parents and parents in law in the March Submissions.  In combination with the primary applicant’s concern for her family’s opinion of her MBA studies and the speed with which she has completed the abovementioned studies, the Tribunal finds that the primary applicant’s personal ties serve as a significant incentive for her to return to India.

    [6] Ibid.

21. The primary applicant chose her course provider based on reviews given by her friends and personally visited the College.  She submits that Australian qualifications have greater recognition and value as compared to Indian qualifications in her home country and that the study in Australia is more practical and current than in India.[7]  The Tribunal accepts this.

    [7] Ibid.

22. The primary applicant states that she is not working[8] and that the applicants’ families in India are financially well off and have a good reputation.[9]  The Tribunal has had regard to the applicants’ economic circumstances, so far as is possible without details of the secondary applicant’s income in Australia, in coming to its decision.

    [8] Ibid.

    [9] Ibid. See also the March Submissions.

23. The primary applicant indicates she expects her remuneration in India to initially be $2,000AUD equivalent per month using the qualifications gained in Australia but that it will gradually increase as her business grows.[10]  The Tribunal accepts this evidence.

    [10] See primary applicant’s response to the s359(2) letter filed 3 March 2019.

24. It is not without significance to the Tribunal in coming to its decision that the primary applicant has managed to continue and complete all of her studies up to and include the majority of her Bachelor’s degree without certainty of a student visa.  This is to her credit.  In addition, the Tribunal notes that the primary applicant expects to complete her Bachelor’s degree on time in June 2019.  In such circumstances, it appears unreasonable not to afford her the few months’ opportunity required for her to graduate.  The Tribunal considers the student visa programme is being used in compliance with policy intentions and that the primary applicant is, in fact, a genuine student.

25. The Tribunal does not have evidence in relation to any military service commitments or political and civil unrest concerns for the applicants’ in their home country.

26. The response to the s359(2) letter states that the applicants’ have not undertaken any international travel other than to India as described above and have not had any visa applications or problems in any other country.

    CONCLUSIONS

27. The Tribunal considers that, in particular: the speed with which the primary applicant has completed her studies and the proximity to finishing her degree, outweigh the factors which appear to be incentives for the applicants to remain onshore. Having had regard to the applicants’ circumstances, immigration history and all other relevant matters, the Tribunal is satisfied that the primary applicant is a genuine applicant for entry and stay as a student temporarily as required by clause 500.212. Accordingly, the primary applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

28. Given the above findings, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for the primary applicant’s Subclass 500 (Student) visa.

29. Consequently, as the decision in relation primary applicant’s review has been remitted, the Tribunal must also remit the secondary applicant’s application for the secondary visa to the Minister to consider whether clause 500.311 in Schedule 2 of the Regulations is met by the secondary applicant, after consideration as required by the immediately preceding paragraph in relation to the primary applicant. Therefore, the decision in relation to the secondary applicant’s review must also be remitted.

    DECISION

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

    ·Clause 500.212 (a) of Schedule 2 to the Regulations.

    T. Quinn
    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.