1414746 (Migration)

[2015] AATA 3112

1414746 (Migration) [2015] AATA 3112 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harinder Pal

CASE NUMBER:  1414746

DIBP REFERENCE(S):  CLF2014/105978

MEMBER:Stuart Webb

DATE:14 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 14 July 2015 at 4:03pm

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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 31 July 2014. The delegate decided to refuse to grant the visa on 13 August 2014. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the study history and work history did not support his claim to remain in Australia. He has already completed a Bachelor of Commerce in India so his additional qualification in business will not increase his remunerations of career prospects on return to India. He applied for this visa only shortly before his 485 visa was to expire. He has been working as a taxi driver in Australia since July 2011 so has a significant employment ties to Australia.

4. The applicant appeared before the Tribunal on 20 April 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The applicant provided a copy of the delegate’s decision to the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)    the Minister is satisfied that 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)    …

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The applicant provided the following statement to the Tribunal.

    I lodged student (Temporary) (Class TU) visa application on 31 July 2014 under subclass 572 which was refused 13 August 2014.

    I, hereby, wish to take the opportunity to present my case in front of MRT for review and explain the reasons that made the application to be refused because the case officer was not satisfied that I am a genuine student.

    I have completed Certificate III in Horticulture (Wholesale Nursery), Diploma of Horticulture and Advanced Diploma of Horticulture and now wish to study further with Diploma and Advance Diploma of Business to obtain a breadth of knowledge and skills in the field of modern business to get benefit from a broader range of skills that could be widely applied in the creative aspects of a business.

    It was argued by the case officer that the proposed courses will reap no rewards for me In India as I had already completed Bachelor of Commerce in India. I hereby wish to state that though I have studies in commerce, I feel I still lack set of skills to successfully administer, manage and operate an Independent business firm (a high-tech nursery). Moreover I wish to gain academic knowledge and practical studies from Australian Institute because my previous education from Australia has provided me skills and knowledge in Horticulture and I am fully confident that Australian education system is far better than India because it gives students the confidence to excel at work place because of more stress on practical studies; rather than just to obtain bookish knowledge. The standard of education in Australia and the practicality that it offers cannot be compared to Indian Education. All these factors attracted me to continue my further studies in Business in Australia to face the cut throat competition in Horticulture business sector back in India and have upper hand on my competitors being trained and qualified through Australian education.

    As I see myself a business owner in near future so I want to learn how business works, to think, strategies and manage and rely on business for prosperity. By completing this course I would gain superior communication skills and have in-depth knowledge of area of interest to manage and run my nursery business successfully.

    These courses will equip me with a broad range of knowledge and skills required for a diverse business prospects, entrepreneurship, innovation and new ventures in the industry, allowing me to work on the development of my business, its performance, growth, operations and services. The study will provide me skills at professional level and would be highly beneficial and would play a vital role in success of my foresighted project of having my own nursery business. My years spent in Australia studying and living would be a bonus for business ventures in future.

    India has a good natural resource base, an adequate infrastructure and excellence in several areas. Nursery business is presently blooming with new construction everywhere and specially in cities flat system is getting popular and people are becoming aware of using their space efficiently with nursery plants and making their home beautiful and eye catching. Some ornamental plants are very much in demand and also yield good profit in export business.

    Varieties of various ornamental plants like shade loving foliage plants, flowering plants, creepers, and plants are suitable for domestic market like parks, gardens and roadside plantations, offices, business houses, hospitals, residential buildings and on the other hand export potentiality of nursery products is also very high. The added advantage of doing this course from Australia is that it would provide me exposure on international level as well, which is highly valuable for export department of any nursery.

    After working few years I have long term plans to consider business in the fields of orchard, vegetable farm, flower or plant production, or processing firm.

    It was also argued by the case officer I applied for this Student visa few days prior to expiry of subclass 485 visas and decided to undertake additional study as means to maintain ongoing residence.

    However this is not true, I was actually studying on 485 visa as well because I like studying and I wish to attain as much academic qualification as I can during my study and living period in Australia because this was my ultimate motto of coming to Australia at first place. I completed Diploma of Management in July 2014 through fast track while holding subclass 485 visa. I did submit certificate of this course to the agent but somehow he did not attached it to my application nor mentioned it in the form. That’s why case officer was not informed that I was still studying on 485 visa.

    Thirdly it was questioned that I was working as taxi driver and not in Horticulture Industry. I hereby wish to submit that gaining work experience in Horticulture sector is of ultimate importance for my future plans to be successful; however I wish to complete my planned studies first and then start working in the sector fully equipped with all skills required for the success in this field.

    But to get the hands on experience in Australian work environment and learn the skills I did work with Swanport Harvest from 13/08/2010 to 31/01/2011 as a nursery person. The job was at Murray Bridge which is approximately four hours to and fro from Adelaide. The horticulture work places are generally situated far from Adelaide but as my classes were in Adelaide I wanted to study, work and live in Adelaide only to reduce commuting time-which could otherwise affect my studies significantly. Therefore I worked as taxi driver in past to meet the day to day expenses and also to concentrate more on studies.

    Regarding gap periods, I have only one gap during my studies.. After the grant of 485 visas in Feb 2013 I took break for a while as I was studying from last four years and started studying again in March 2014 (Diploma of Management, fast track). But have no gaps between other completed courses while holding student visa.

    Therefore I request you to please consider my student visa application, so that I can attain qualification in my field of choice and able to work on my foresighted project back in India.

11. The applicant provided the Tribunal with a reference from an employer, a nursery, from August 2010 to January 2011.

12. The Tribunal discussed the applicant’s circumstances with him at the hearing. The Tribunal noted that the applicant arrived in Australia in August 2009. He was initially on a subclass 572 visa prior to applying for and being provided with a subclass 485 visa, in February 2013 which expired on 12 August 2014. The applicant applied for the current student visa on 31 July 2014. The applicant stated that he had previously started studied a Diploma of Nursing, but was ‘not that good’ in that area, so left and commenced and completed a Certificate III in Aged Care Work. The applicant then enrolled in and completed a Certificate III in Horticulture (Wholesale Nursery), a Certificate IV in Horticulture, a Diploma of Horticulture, issued in April 2012, and an Advanced Diploma of Horticulture, issued in January 2014. Evidence of these qualifications was provided to the Tribunal. The applicant also provided evidence that he had completed a Diploma of Management dated 3 July 2014, though this was completed while the applicant was holding a 485 visa.

13. The Tribunal noted that when the applicant was holding a 485 visa it was for the purpose of gaining experience in the horticulture field, and that the applicant did not appear to have worked very long in such an area. The reference from Swan Port Harvest[1] stated that the applicant has been employed as a nursery person from August 2010 to the end of January 2011. The applicant stated that he had tried to work in horticulture but only had a part-time job, and this was far from Adelaide. The Tribunal noted that this work reference was outside the time of his 485 visa. The applicant stated that he was not able to find work while on his 485 visa, and that he was overseas for a couple of months during this time, confirmed as from 19 January 2014 to 12 March 2014. The applicant stated that he was not able to get into the sector The Tribunal noted that the applicant was capable of getting work driving a taxi since July 2011. The applicant stated that this was in order to meet his day to day costs.

    [1] MRD Folios 47-48

14. The Tribunal questioned why the applicant had entered into the management studies, given that this was quite different to his previous studies The applicant stated that he believed he needed to have a set of skills in management and performance. The Tribunal questioned why the applicant was then further seeking to study a Diploma of Business and an Advanced Diploma of Business. The applicant stated that it was a very different to horticulture and he needed the skills to establish a business in India in orchards and flowering plants. The applicant stated that he would like to get into the construction in the government sector projects of ornamental plants, and needed the skills to assist him in this business. The Tribunal noted that the applicant had a Bachelor of Commerce degree in India. The applicant stated that this was in accounts and different to his business studies.

15. The applicant stated that his family was seeking to invest in land for the purpose of developing a business. His uncles were in the construction business and the applicant wanted to assist by developing a nursery business. The applicant wanted a full knowledge of independently developing his own business and wanted to see how businesses operate before he goes back to India. The applicant stated that he would face fierce competition in India. The Tribunal noted that the applicant had not taken up this opportunity to see how businesses operated while holding his 485 visa, which was a reason for being granted that visa.

16. The Tribunal is significantly concerned by the applicant’s study history in Australia. The applicant came to Australia and studied two years of nursing or aged care studies. He then switched his focus to the altogether different area of horticulture, and completed a number of courses in this area. The Tribunal notes that the academic transcripts of the applicant’s studies include a number of business and management related subjects[2], including a Diploma of Management. The Tribunal notes further that the applicant already has a significant qualification in Commerce from India, prior to his coming to Australia. The Tribunal found the applicant’s explanation for his undertaking further studies in business to be vague and unformulated. The applicant spoke about an idea to develop a business in horticulture in India, however the Tribunal considers that his explanation as to why he requires business qualifications to make this idea become a reality was extremely limited. The applicant referenced ‘competition’ in India from rival businesses but provided little further information as to why he requires a further number of years in Australia to achieve an outcome in business. The applicant appears to have ignored the significant business-related studies he has already completed and how this will assist him in establishing a business now and not after further studies have been completed. The Tribunal does not accept that the acquiring of further qualifications in business will assist the applicant in future employment or remuneration opportunities, given his already reasonable level of qualification, including in related business studies during his commerce and horticulture and management courses. Given the Tribunal’s significant concerns as to the reasons why the applicant is undertaking the business-related studies, the Tribunal does not accept that the applicant is a genuine student, and that he is seeking to use the student visa program to maintain his residence in Australia for other purposes.

    [2] MRD Folios 50, 53, 55, 57, 61, 63-64

17. The applicant was given the opportunity in Australia to gain qualifications and experience in his chosen field when granted the 485 visa. The evidence of the applicant is that he found it too difficult to get work in this field and was not prepared to commute from Adelaide for work purposes. The Tribunal questions the applicant’s true intention to work, given that he had employment for a period of time in a nursery, subject to the working hour limitations on a student visa, and yet when those restrictions were taken off in line with the conditions of the 485 visa, the applicant provided no evidence that he had sought full-time work in his chosen field. Rather the applicant provided evidence to show that he had instead been driving a taxi during this time, which was certainly not envisaged as part of his post study experience that predicated the grant of the 485 visa. Similarly the applicant’s evidence that he was studying at this time, which he provided evidence of, has limited relevance given that the 485 visa was not granted for the purpose of the applicant conducting further study but for the purpose of gaining work experience. The Tribunal does not accept the applicant’s study is a reason why he failed to conduct work in the relevant field while on the 485 visa. Had the applicant had been genuinely interested in opening a business in horticulture, the Tribunal considers that the applicant had the opportunity to relocate to locations in rural Australia where he would have been able to gain the further experience the states he requires to operate a business. That the applicant chose not to do so is notable for the Tribunal, and leads to the Tribunal having significant concerns regarding the applicant’s compliance with visa conditions in Australia.

18. The Tribunal discussed the applicant’s circumstances in Australia and in India. The applicant has been in Australia since 2009, and has returned on two occasions to India for short periods of time. The applicant stated that his family are intending to invest in land to assist the applicant in operating his business, and that his uncles have a construction business. The Tribunal questions why the applicant’s family has not already commenced such business planning and investment if the applicant was so minded to operate such a business in the future, or why the applicant had chosen not to work closely with his uncles whom he states were already operating a construction business. The Tribunal questions the applicant’s genuine intention to operate a business in India given the opportunities that he states already exist and which he is not pursuing. The applicant provided no evidence of any business plan in India. The Tribunal places limited weight on the applicant’s future employment intentions or family links in India that he states will assist him to establish his business. While the applicant’s family does reside in India, the applicant has demonstrated that he is able to act independently, given his extended residence in Australia. the Tribunal places limited weight to his opportunities and family in India.

19. The applicant is a single man on his own in Australia. He has lived in Australia for six years, and through his employment as a cabdriver since July 2011, has demonstrated a significant employment tie to Australia. His desire to remain in Australia for a further period in his current circumstances provides some weight to the consideration that he has reasons to seek to remain in Australia for an extended period of time.

1. On the basis of the above, and having considered the applicant’s circumstances, immigration history, Direction 53, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

2. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Stuart Webb
   Member