appellant. 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 500 (Student) visa: cl...
Key principles
The Tribunal's decision to remit the application with a direction that the applicant meets the genuine temporary entrant criterion under cl 500.312 was based on a balancing of...
The Tribunal gave weight to: (a) the applicant's stated intention to return to India at the completion of her husband's current course of study; (b) the fact that the husband's...
The Tribunal gave weight against the application to: (a) the applicant's arrival on a tourist visa and rapid application for a student visa within weeks; (b) the inconsistency in...
The Tribunal found that discussions on social media between the applicant and her husband regarding permanent residence options did not reflect adversely on whether she was a...
Issues before the court
Whether the applicant satisfies the genuine temporary entrant requirement under cl 500.312 of Schedule 2 to the Migration Regulations 1994
Plain English Summary
Mrs Sharma, an Indian national, came to Australia in May 2022 on a tourist visa to join her husband who was studying. Three weeks after arriving, she applied for a student visa to stay longer. The government refused her application because they didn't believe she genuinely intended to stay temporarily. The Tribunal reviewed this decision and found that while there were concerning aspects—such as her applying for the visa so quickly after arriving, inconsistent statements about why she left her job in India, and previous visa refusals—there were also factors supporting her case. These included her husband's course not leading to permanent residency, her family responsibilities in India, and her pregnancy and childbirth in Australia explaining why she stayed longer than planned. The Tribunal decided the evidence was evenly balanced and gave her the benefit of the doubt, sending the case back for reconsideration with a direction that she meets the genuine temporary entrant requirement.
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Judgment (13 paragraphs)
[1]
The applicant confirmed that she had read the delegate's decision dated 22 June 2022. Further that she understood the issue for determination is whether she satisfied clause 500.312 (a), namely that she was a genuine temporary entrant.
Whether the applicant is a member of the family unit of the primary visa holder
Cited legislation
No linked legislation citations have been extracted yet.
The Tribunal proceeded to ask the applicant questions, the substance of which and her responses were as follows.
The applicant confirmed that she and Mr Kumar are still married and that he is enrolled in a graduate diploma of management.
The Tribunal observed that the applicant resigned her employment effective from 31 May 2021. She agreed. When asked why she resigned her employment she said "I was coming to see my husband for three months, they were not giving me that long holiday."
The applicant confirmed that she was married in India on 20 June 2021. She also confirmed that she arrived in Australia on 23 May 2022. The Tribunal observed that she resigned her employment in May 2021 because she could not get three months leave of absence but did not leave to travel to Australia for approximately one year. She was invited to explain. She said "we got married in June 2021, he came back in December 2021, they did not give me holiday for marriage, I was working online." The Tribunal informed the applicant that the dates did not make any sense and asked that if she resigned in May 2021 to explain why she was working in June 2021. She said "the children sessions was completed, then Covid 19 came, to complete the sessions I had to work online, they said cannot go without completing."
The applicant was asked again why, having resigned in May 2021 because she was not granted three months leave of absence, she waited for approximately one year to travel to Australia. She said "despite me having resigned they said children going for exam you need to complete education with them even after resigning, I worked until September." When asked whether she was paid until September she said "yes."
She was again asked why it took approximately a year after resigning to travel to Australia. She said "at first I was not interested in Australia, then the mood changed and I said let's go and see." The Tribunal observed that she had resigned her employment because she didn't get the leave of absence she wanted in order to travel to Australia and asked why she said she was not interested in travelling to Australia. She said "I did not resigned to come to Australia, resigned to get married". The Tribunal observed that she had previously stated that she resigned because she could not get a three month leave of absence in order to travel to Australia. She said "it was a mistake, I was confused."
She was asked how long she intended to stay in Australia when she first arrived. She said "three months, but when I came to Australia I conceived a baby and I had to stay here." She was asked when she became aware that she was pregnant. She said "in July." The Tribunal asked whether she was referring to July 2022. The applicant said "yes." She was asked whether she was sure of the date. She said "yes when I conceived I have medical complications and they told me that you are one month pregnant, I wanted to do abortion, I discuss with my husband and family, they said don't do it."
The Tribunal observed that she made the student visa application in question on 16 June 2022, before she knew that she was pregnant. The applicant agreed. The Tribunal reminded the applicant that she had given evidence that she became pregnant and this changed her intentions and that is why she had applied for a student visa. She said "even though I had applied I was not keen to stay, because of medical condition." When the question was repeated she said "my intention was only to get visa, not to stay here." The Tribunal informed the applicant that her responses were most unconvincing. The applicant did not reply.
The Tribunal observed that she arrived in this country intending to stay for three months but within a few weeks she had made a student visa application which would enable her to stay whilst her husband was studying. She said "I came here for three months, student visa application in June, in July I can see baby." She was invited to answer the question directly. She said "I have no motivation to stay, my family is in India." The Tribunal to observed that the her husband and child reside in Australia and that it was incorrect to say that her family resided in India. She said "even though he is here, father in law is in India, it is important for me to look after his father, my brother is in Canada, he is alone, I have wanted to go and look after him."
The Tribunal observed that whilst the applicant was saying that she did not want to stay in Australia and that she wanted to look after her father-in-law in India, she was still in Australia and invited her to comment. She said "I conceived a baby here, that is the reason I stay here, I have no intention to stay here, I wanted to go back, I was not able to travel, I have such bad nausea, my doctor advised me to stay here, my cousin could have put in temporary residence application but he is not doing it, we're going back."
The applicant was asked whether she had any medical opinion evidence to support her assertion that she could not travel. She replied "talk with doctor, he says not for travel".
The Tribunal observed that the applicant had not returned to India since arriving and invited her to comment. She said "with pregnancy complication and after baby born we had to stay here for vaccinations: one needed six months late." When asked when her child was born she said "22 February 2023."
The Tribunal observed that in the information she had provided she stated that she had previously been refused a student visa. She was invited to explain. She said "it was refused because I did not come here to study, came here to join husband." She was asked whether this was a different visa application which had been refused and not the one that was subject of this proceeding. She said "I put a file in." She was asked to explain any previous visa applications and give refusal details. She said "one skill visa and there was a 500 visa before that." She was asked when these applications were refused. She said "skill visa refused in November 2022." She was asked whether the visa application was in her name and she said "that was just a trial because my brother-in-law was in Canada he said kitchen skills assessed." When the question was repeated she said "I got student visa from India, that was refused, student dependent visa." The applicant was invited to respond directly to the question. She said "I had no motive to stay here, it was just a trial to see my brother-in-law was in Canada."
The Tribunal observed on her evidence this was the third visa application which had been refused. She said "no." She was invited to explain. She said "only two visa, student for India, and one refusal here." The Tribunal asked why she had been discussing a skilled student visa application which had been refused and she said "by mistake." The Tribunal observed that her explanation was difficult to accept because she had used the term "skilled visa application" on numerous occasions. She said "a mistake of confused."
When asked whether she was employed in Australia she said "no." When asked whether she had assets in India in her own name she said "yes, cash and fixed deposit."
She was asked to state her intention when her husband completes his current course of study. She said "our intention is to go back, my father-in-law is ill, I need to look after him, we have a property there, it is expensive here, we can live comfortably there with what we have."
The applicant was asked whether she intended to apply for permanent residence in Australia. She said "no." When asked whether she was aware of certain "Whatsapp" discussions with her husband about obtaining permanent residence she said "yes." She was invited to comment. She said "I was thinking differently, when I have the discussion, when I came here I saw it was so expensive here, but in India I can easily get a job with my qualifications, that that was just a trial where my brother-in-law said in Canada, we have no intention of living here, we will go back to India, my age is not for study, I will have to look after children."
The applicant was invited to add anything further to her application for review. She said "we want to go back to India, my husband went back, he came back to do higher education, once completed again back to India, it is very difficult to stay here, we have our own home in India, and zero expense, my mum can look after the child, I can get a job, if I stay here I have to study again, that is too hard for me, with my husband completing higher education will go back and live in India."
The applicant's representative was invited to make any submissions. He made two points. First that the applicant's husband is not eligible for a 485 visa and cannot apply for permanent residence. Secondly it is too expensive for the applicant to remain in Australia and that they intend to return to their home country.
[2]
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal's rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant's evidence.
Without diminishing the applicant's evidence, it can be summarised as follows.
The applicant completed a bachelor of arts, Master of arts in psychology and a postgraduate diploma in guidance and counselling in India. She has been employed apparently as a psychologist in India for some time. She resigned her employment as a psychologist effective from 31 May 2022 she has not been employed since that time.
The applicant and Mr Kumar were married in India on 20 June 2021
The applicant arrived in Australia on 22 May 2022 as the holder of a tourist visa. She has not returned to India. Their child was born in Australia and remains in Australia.
The application for the student visa in question was made on 16 June 2022, a few weeks after the applicant arrived in Australia.
The applicant is not enrolled in any course of study in Australia and has no study history in Australia.
The applicant owns no real property in India. Her mother and father reside in India. Her spouse and their child both reside in Australia. She has no employment history in Australia and is currently unemployed. The applicant has stated a vague desire to return to India and "run a business" with her husband. No details have been provided.
The applicant's spouse, Mr Kumar is currently enrolled in a graduate diploma of learning due to be conducted between 11 March 2024 and 7 September 2025. His study history discloses that he has been enrolled in various courses since February 2019 and he has had multiple enrolments cancelled. He appears to have completed an English course and a certificate IV in building and construction. His enrolment in a diploma of leadership and management was due to start on 17 June 2024 what was cancelled due to "non-commencement of studies."
[3]
The Tribunal considers the factors for and against the applicant being a genuine temporary entrant for study in Australia are closely balanced in this case. On the one hand the applicant arrived in Australia intending to stay for three months but quickly changed her intention and applied for a dependent student visa, the explanation was that she became pregnant and then decided to stay because of alleged complications in the pregnancy. The Tribunal does not accept the explanation because the student visa application was made in June and she only became aware of the pregnancy in July 2022. However, the applicant is entitled to apply for such a student visa onshore and while holding a tourist visa.
Next, the applicant has been in Australia since May 2022 and has not returned to India. She said this was because her child was too young to travel without vaccinations. Whilst there is no medical evidence to support this assertion, it is given some weight by the Tribunal as probably being correct. She owns no real property in India, her assets are cash at a bank and no corroborating documents have been produced.
The applicant has had at least one other visa application refused, and she appeared reluctant to give details about it. The previous refusal taken together with her conduct in arriving in Australia and then quickly applying for a visa which would enable her to stay for much longer speaks only to the desire or motivation of the applicant to travel to Australia. Similarly, the discussions on social media between she and her husband regarding the option of applying for permanent residence reflect on her possible intentions at that time but she has given evidence that she has not applied for permanent residency and does not intend to do so. The conversation in which the option is discussed in the Tribunal's view does not reflect adversely on whether the applicant is a genuine temporary entrant.
The applicant has stated that she and her husband intend to return to India at the completion of his current course of study. This is given some weight. Whilst the applicant's representative stated that the current course of study does not provide a pathway for either a temporary graduate visa or permanent residence, it would not preclude the applicant's husband from applying to study different courses. The Tribunal notes that the applicant's husband's course is due to finish in early 2025 and that the applicant is currently studying.
However, on balance, and not without significant misgivings, the Tribunal considers it appropriate to give the benefit of the doubt to the applicant. Should the applicant make a further student visa application on the basis of her husband's intention to undertake further study after this, the evidence she gave to the contrary in connection with this case will clearly be relevant to any assessment her intention to stay in Australia temporarily only to study.
[4]
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 500 (Student) visa:
cl 500.312.
[5]
(1) This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.
[6]
(2) A person is a member of the family unit of another person (the family head) if the person is:
[7]
(a) a spouse or de facto partner of the family head; or
(b) a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:
(i) has not turned 18; or
(ii) has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or
(iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or
(c) is a dependent child of a person who meets the conditions in (b).
[8]
This subregulation has effect subject to the later subregulations of this regulation.
[9]
(1) Subject to subregulation (2), a person (the first person) is dependent on another person if:
[10]
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
[11]
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and
[12]
(ii) the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or
[13]
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.
Cases Cited (1)
Sharma (Migration) [2024] AATA 706 (21 February 2024)
AI Analysis
Outcomeappellant
Disposition:
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 500 (Student) visa: cl 500.312.