Vikas Raj (Migration)

Vikas Raj (Migration) [2020] AATA 5005 (20 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Vikas Raj
Mrs Monika Raj
Master Shivain Raj
CASE NUMBER:  1923229
HOME AFFAIRS REFERENCE(S):          BCC2019/2380709
MEMBER:S.Witts
DATE:20 November 2020
PLACE OF DECISION:  Melbourne

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

Statement made on 20 November 2020 at 7:30am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study, work and visa history – applied for student visa after entering on visitor visa – future employment plans – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 31 July 2019 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 4 May 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.
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) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.
The applicant appeared before the Tribunal on 19 November 2020 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were assisted in relation to the review by their registered migration agent.
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. The issue in the present case is whether the applicant genuinely intends to stay in Australia temporarily.
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.
At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.
According to the delegate’s decision record dated 31 July 2019 provided to the Tribunal by the applicant, the delegate refused the applicant’s application for a student visa because it was not satisfied that the applicant was a genuine temporary entrant.
According to the delegate the applicant was granted his first visa, a visitor subclass 600 visa and that the applicant sought to then remain in Australia as a student together with his spouse and family.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and also evidence taken at hearing.
In particular the Tribunal has considered the applicant’s response to a request for student visa information under s.359(2) of the Act. In this response the applicant stated that he first arrived in Australia on 10 February 2019 and that prior to this he completed his secondary school in India in 1999. He then trained as a welder and worked in this field from 2005 until 2019 earning the equivalent of AU$3600 per annum. He confirmed that he first arrived here as a visitor.
He stated that he has been enrolled in a certificate three level course in fabrication which began in April 2019 and completed in July 2020 and that he is now enrolled in a Certificate IV in Engineering which commenced in July 2020 and is due to complete in December 2020.
In regard to his stay and will study here in Australia he stated that “the manufacturing industry is changing fundamentally, with advanced technologies increasingly underpinning global competitiveness and economic prosperity. I have learnt the principles of fabrication engineering those are applicable to most machines, tools and processes which naturally widen my scope of learning and research. This has attracted me to explore the option of pursuing further engineering diploma, which I believe will not only supplement my knowledge and experience that I have acquired in India but also provide me with the best possible platform for the higher earnings attainment of my future goals. My study goals include discovering the latest opportunities and barriers manufacturers face in evaluating and adopting technologies, and explores how global manufacturing companies can best capitalise on emerging technologies.”
In regard to why he chose to study here he stated that “I had done a thorough research on available courses in India, I have already completed a national trade certificate course in India any occupation of welder. Different goals require different parts and I decided to upgrade my education and knowledge with the technology being used today in enterprises and enrolled myself with Baxter Institute that followed the current trade curriculum. At Baxter my qualification will covers the skills and knowledge required for employment as an engineering trade person fabrication within the metal, engineering, manufacturing and associated industries. The qualification has been specifically developed to meet the needs of trade. The qualification packaging has been developed on an assumption that competency will be developed through an integrated combination of on and off the job learning strategies such as those delivered through formal apprenticeship.”
He stated that his current monthly living costs here in Australia were AU$2235.
He stated that he has a spouse and child here in Australia, and his parents in India, and a brother in the United Arab Emirates.
He stated that he keeps in regular contact with his father on a daily basis and that he speaks to his sister and brother in India and the United Arab Emirates once a month.
He stated that he has ties in Australia as his brother-in-law is an Australian resident.
He stated that he has assets of approximately AU$100,000 back in his home country of India.
In regard to his future plans he stated that welders with business knowledge are in great demand in the manufacturing industry and that India is poised to achieve the benefits of a huge market in the welding industry.
He stated that he would expect to receive significant salary increases because of his qualifications gained in Australia.
The applicant did not indicate that he had any concerns about military service commitments, or political or civil unrest issues that would stop him going back to his home country.
The Tribunal has also considered other material provided by the applicant including an affidavit in support and a statutory declaration from the applicant’s brother-in-law.
At hearing the Tribunal had a discussion with the applicant regarding his stay and study here in Australia noting that the applicant first came here as a visitor to see his family and then decided to stay here and attempt to provide for himself a longer term visa.
The Tribunal had a discussion with the applicant as to his circumstances in coming here on a visitor visa as a tourist to visit family and then deciding to live here with his wife and son who is 12 years old. The applicant stated that he came for a holiday but decided to study here.
The Tribunal had a detailed discussion with the applicant about his previous qualifications and work history back in his home country noting that the applicant stated that he is a skilled welder who has undertaken appropriate training and registration back in his home country prior to working for several years as a skilled welder both in his home country and also for a period of time in the United Arab Emirates. The Tribunal had a detailed discussion with the applicant regarding his current enrolments here in Australia and the need for them, and the applicant stated that the training here in Australia in fabrication and other areas associated with his career orientation is much more advanced here in Australia and that it would be useful for him back in his home country.
The Tribunal has considered the applicant’s stay and study here in Australia carefully and is concerned about the applicant’s evidence that he first decided to come here as a visitor with his wife and son and then subsequently decided that he wished to study here on a longer term visa. The Tribunal has considered the applicant’s visa and immigration history carefully and does not find the applicant’s evidence in this regard credible. The Tribunal finds that the applicant has given a contrived set of reasons how it occurred that he came here as a visitor and as stated the Tribunal does not find these reasons credible under the circumstances. The Tribunal finds that the applicant’s visa and immigration history suggest that the applicant’s subsequent application for a student visa was contrived in order to allow he and his family to stay here for a longer period of time. The Tribunal finds that this lends weight to the contention that the applicant was seeking to use the student visa program to circumvent the migration program.
As noted above the Tribunal also had a detailed discussion with the applicant about the value of his enrolments to his future here and acknowledges that the applicant is currently enrolled in a course that could conceivably be relevant to his previous career orientated endeavours as a welder. The Tribunal notes that the applicant has said that the courses here are more advanced than back in his home country. The Tribunal also notes however that the applicant not only has significant welding qualifications gained back in his home country but also considerable experience in this field and does not accept as credible the applicant’s evidence for the reasons for his study here and of the stated value of these courses to his future. The Tribunal finds that the applicant has not provided credible evidence in this regard and that he is seeking to undertake a course that is not consistent with his current level of education, work experience and professional qualifications and that the applicant’s current enrolment will not necessarily assist the applicant to obtain employment or improve employment prospects in his home country. It is noted by the Tribunal that decision-makers should allow for reasonable changes to study pathways however it is also noted by the Tribunal that in this case the applicant has not been able to provide credible evidence that such qualifications will be useful for him given his background and experience and that therefore the relevance of the course to the applicant’s past or proposed future employment either in his home country or a third country is not established and that the remuneration the applicant could expect to receive in his home country or a third country, despite his statements, would not necessarily be assisted by this qualification in this proposed course of study in fabrication and engineering at certificate level. It is noted by the Tribunal that the applicant stated that he could look forward to significant increases in his remuneration because of these courses but the Tribunal has considered this and does not find it credible that this is the case. Taken as a whole the Tribunal finds that this lends weight to the contention that the applicant is using the student visa program to circumvent the migration program and retain residence in Australia.
In regard to the economic circumstances of the applicant it is noted by the Tribunal that the applicant does not have work rights in Australia and is maintaining himself here from his asset base back in his home country. The Tribunal has considered this carefully and finds that the applicant and his family have been able to maintain themselves here under these circumstances and that these circumstances would present as a significant incentive for the applicant not to return to his home country and that this lends weight to the contention that the applicant is seeking to use the student visas program to circumvent the migration program.
In regard to the applicant’s ties with Australia it is noted that he is here with his wife and son and that his son is going to a local school and that he is living with his brother-in-law’s family. The Tribunal finds that the applicant’s ties with Australian would present as a strong incentive for the applicant to remain in Australia, this includes both consideration of the applicant’s family and community ties. In regard to the applicant’s personal ties to his home country it is noted as above that the applicant has his family with him here in Australia and did not indicate he was having any problems maintaining his family relationships with his wider family from here in Australia and the Tribunal finds that the applicant’s personal ties to his home country would not serve as a significant incentive for the applicant to return to his home country and that these factors taken as a whole also lend weight to the contention that the applicant is seeking to use the student visa program to circumvent the migration program and maintain residence in Australia.
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.
In regard to the secondary applicants, as the primary applicant did not meet the criterion for the grant of the visa, the secondary applicants did also not meet the criteria for the grant of the visa.
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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
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.

[2020] AATA 5005

20 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction