1417589 (Migration)

[2016] AATA 4862

1417589 (Migration) [2016] AATA 4862 (27 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saurabh Bhandari
Mrs Pooja Mahendru
Mr Pratham Bhandari

CASE NUMBER:  1417589

DIBP REFERENCE(S):  BCC2014/2296966

MEMBER:Tim Connellan

DATE:27 June 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2016 at 3:50pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Seeking to establish a hotel – Limited work experience – Studied hospitality – Subsequent studies have been in unrelated courses – Use of student visa program to maintain ongoing residence

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 572.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Mr Saurabh Bhandari as primary applicant, his wife Mrs Pooja Mahendru and their son Mr Pratham Bhandari Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 10 September 2014. The delegate decided to refuse to grant the visas on 15 October 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 visas because Mr Bhandari did not satisfy the requirements of cl.572.223(1)(a) of Item 1222 to the Regulations because having considered the factors in Ministerial Direction No.53 and Mr Bhandari’s circumstances and immigration history, the delegate was not satisfied he was a genuine applicant for entry and stay as a student who intended to genuinely stay in Australia temporarily.

4. The applicants applied for review of the decision by the Tribunal. A copy of the primary decision was included with the application.

5. On 16 June 2015 the Tribunal wrote to Mr Bhandari and invited him to attend a hearing scheduled for 16 July 2015.

6. The primary decision made significant reference to Ministerial Direction No. 53 – Assessing the genuine temporary entrant criteria for student visa applications.

7. The hearing invitation invited Mrs Chopra to provide a range of evidence prior to the hearing including evidence of previous studies and an explanation of any gap in his enrolments.

8. The Tribunal considers that the primary decision had already put him on notice regarding the question of his being a genuine temporary entrant and included the following:

   We will assess whether you intend genuinely to stay in Australia temporarily
   as required by clause 572.223(1)(a) of the migration regulations

   Relevant to this requirement is a direction from the Minister known as
   Direction No.53. A copy of which is attached

   Please provide a written statement addressing the issues of whether you are a genuine temporary entrant by referring to Direction No. 53.

9. Prior to the hearing the Tribunal received a submission which included a statement by Mr Bhandari. The statement outlined his study history and having being granted a 457 visa. He spoke of his current study plans being to complete a Diploma of Marketing before returning to India. In his statement he said there are many 5 and 7 star hotels in his home city of Jalandhar which has a population over 2 million and he planned to open a motel/restaurant and catering business. He said he had paid local authority fees to get approval for the development of a residence and large motel/restaurant. He referred to his motel/restaurant plans on a number of occasions. He said he had maintained close ties to his homeland and wanted his Australian-born son to be brought up in the Indian culture. He said he had worked in the hospitality industry both in Australia and India and always had a passion for cooking. The submission did not include any evidence of past studies.

10. The applicants appeared before the Tribunal on 16 July 2015 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. The issue in the present case is whether Mr Bhandari 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)     …

14. 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.

15. 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.

    The Hearing

16. Mr Bhandari told the Tribunal he had read and understood the primary decision, a copy of which he provided with his review application.

17. He said he believed the decision had been made because he didn’t study while on a 457 Temporary Work (Skilled) visa. The Tribunal referred to the primary decision and the findings of the delegate that he was found to be using the student visa program to maintain ongoing residence in Australia and that having considered his history the delegate was not satisfied he was a genuine applicant for entry and temporary stay in Australia.

18. Mr Bhandari told the Tribunal he arrived in Australia in August 2008. Prior to coming to Australia, having finished high school he worked for pocket money is an insurance agent for 2 years and then did a little trade in garments between Delhi and the Punjab for 4 or 5 years. He said his business was not very good and he lived at home and was dependent on his parents. He repeated a number of times that he had no other work experience before coming to Australia, before saying he had a little bit of unpaid experience in cookery with his uncle who had a big hotel in India where he claimed to go once or twice a week.

19. He married in 2008 shortly before coming to Australia.

20. He said his intention was to build and run a hotel in India and he came to Australia to study and gain the skills to enable him to open a hotel.

21. When asked why he did not do his studies in India, he said while he realised he could do his studies in India he was keen to learn international cuisine and skills.

22. When asked about his plans for the business, he provided a rambling and vague answer. He said the hotel would have 15 to 20 rooms and a restaurant. He went on to say he also intended having a catering business for external functions and a takeaway shop.

23. When asked about the number of staff the business would require, again he was vague and said he would hire 2 to 3 chefs and casuals for the catering business. When questioned further he said he would have waiters and cleaners. He provided no answer to who would manage front of house. When asked who would cook breakfasts for hotel guests, he said he had cooking skills. He said he would like to be in the kitchen to teach the staff international cuisine.

24. The Tribunal suggested that running a 15 to 20 room hotel, managing a catering business, a restaurant and a takeaway shop would be difficult if he was also required to cook in the kitchen. He provided no coherent answer. The Tribunal told Mr Bhandari it did not believe his plans had been properly formulated.

25. When repeatedly asked to detail his study plans prior to coming to Australia, Mr Bhandari prevaricated and again provided vague answers saying that Jalandhar was famous for sports manufacturing and was a pathway to Kashmir. He eventually said he came and studied cooking after which he did management and business and was learning marketing because he wanted to polish his skills to get a big contract. Then his employer gave him the opportunity to get practical work.

26. Mr Bhandari detailed the chronology of what he had done since coming to Australia. He said he completed Certificates III and IV in Commercial Cookery, a Diploma of Hospitality Management following which he studied Diplomas in Business and Management. When asked why he had done the diplomas he said he wanted to learn how to plan business, how to do organisation and how to tackle staff. The Tribunal asked if those matters had not been included in the Diploma of Hospitality or Hospitality Management. He said he did not believe the subjects had been covered sufficiently for him.

27. He said he had done a Certificate IV in Management and a Diploma of Business. When  asked whether the Certificate IV was in management or marketing he responded that he had studied marketing but did not complete it but he had completed management.

28. He said his plan was to polish his marketing skills and he had been working part time for 3 to 4 months with a security firm Nationwide Connections who offered him a contract to work full-time as their Customer Service Manager and Operations Manager, a job he said that entailed getting feedback from customers to enable them to change operational policies if required. He said they sponsored him for a subclass 457 (Temporary Work) skilled visa

29. He said he worked for Securezone Security Services who were a division of his sponsor Nationwide Connections.

30. The Tribunal asked whether he or the sponsor had initiated discussions about the 457 visa. He said his boss had moved to Perth and asked if he would run the business in Victoria.

31. The Tribunal asked Mr Bhandari what skills he had to perform such a role given his completed studies included some cooking and hospitality management and basic business management. He responded saying he was thinking he could learn practical skills of how to run a business and manage staff. He provided payslips showing he was paid $24 an hour. He said he did not have any evidence of his contract with the company as it had been provided to him on the company computer to which he no longer had access.

32. The Tribunal told Mr Bhandari it thought it unusual that he could provide all his payslips but not the contract. The Tribunal told Mr Bhandari it found it implausible that he was the State Manager of a company and his payslips clearly showed their name as Securezone Security Services  (AUS) Pty Ltd yet he was apparently unaware of that company’s relationship with  his sponsor Nationwide Connections, if such a relationship existed. He provided the Tribunal with no evidence regarding the relationship between the businesses.

33. He said the Department of Immigration notified him that his sponsor company Nationwide Connections had been liquidated.

34. He said he believed that his employer had been involved in tax evasion.

35. He said he started full-time work in January 2014. The Tribunal noted from the primary decision that Mr Bhandari had immediately ceased his marketing studies when granted the 457 visa. Mr Bhandari responded that he was required to work 5-6 days a week which did not allow him time to study.

36. The Tribunal told Mr Bhandari it had difficulty with his evidence that he came to study to gain skills that would enable him to return and run a hotel and yet was happy to stop his studies to get a job in a business that had no relationship to hotels or hospitality. He stopped studying when granted a 457 visa and only when it was cancelled did he decide to enrol in further studies and apply for another student visa.

37. The Tribunal told Mr Bhandari it believed this behaviour indicated his motivation was to remain in Australia rather than to pursue a legitimate academic pathway and lead the Tribunal to share the view of the delegate that he was seeking to use the student visa program for the purposes of remaining resident in Australia.

    Reasons for decision

38. The Tribunal believes that the primary objective of student visa holders in Australia must be to study and progress academically.

39. In considering whether Mr Bhandari meets the genuine temporary entrant criteria I had regard to the factors consistent with clause 572.223(1)(a) being his circumstances, immigration history and other relevant matters and Ministerial Direction No. 53. Those factors were used to weigh up his circumstances as a whole.

40. Mr Bhandari arrived in Australia as a 27-year-old married man in August 2008 with very limited work experience. He said he came here to gain study skills.

41. In a prehearing submission he referred to there being a number of Hotels in his home town and said it was his intention to go back and set up a Motel/restaurant business and a catering business. At the hearing he said he intended to go back and build a hotel which would include a restaurant, a catering business for external functions and a takeaway food business. The Tribunal finds that Mr Bhandari’s evidence about the business he intends to open on his return to India is not consistent.

42. The Tribunal believes from Mr Bhandari’s evidence at the hearing, that he does not have a considered business plan but rather provided answers he thought would satisfy the Tribunal. The Tribunal finds Mr Bhandari does not have a formulated business plan and therefore is not studying to enable him to fill a role in any specific business.

43. Mr Bhandari told the Tribunal he had completed a Certificate III in Commercial Cookery and a Diploma of Hospitality as well as a Diplomas of Business and a Diploma of Management. He had studied but not completed a Certificate IV in Marketing and at the date of the hearing was studying a Diploma of Marketing.

    In his prehearing submission he said he was keen to complete a Diploma of Marketing and stated: I decided that I did not need to do the Advanced Diploma in Marketing as that is more suited to someone who wants to work in an advertising agency or as a marketing executive of a large company. And by doing just the diploma I would have enough marketing skills to promote and grow my own business on my return to India and have it completed within about a year instead of two years.

44. Since April 2013, Mr Bhandari has held two cancelled enrolments to study a Certificate IV in Marketing, the latter of which was cancelled for non-payment of fees. He was enrolled in a 26 week Diploma of Marketing at ANGAD Institute of Management. That enrolment was cancelled for non-commencement of studies. He has since been enrolled in 12 month Diploma of Marketing courses at the Australian Institute of Technical Training on three occasions. Two of those enrolments were cancelled for non-commencement of studies the other is his current course. The Tribunal does not believe this is the enrolment and study pattern of a genuine student, but rather indicates he is using the student visa program to maintain ongoing residence in Australia.

45. Mr Bhandari claims he came to Australia to gain the skills to run a hotel, yet having completed his hospitality studies he was granted a 457 Temporary Work (Skilled) visa when sponsored to work for a security business with no relationship to hospitality. The Tribunal does not accept Mr Bhandari’s argument that such employment provided him with valuable experience in business.

46. When his 457 visa was cancelled, Mr Bhandari again applied for a student visa and enrolled in courses not related to hospitality.

47. The Tribunal believes that Mr Bhandari’s behaviour is not consistent with that of a genuine student but rather indicates that he is seeking to use the Australian student visa program to maintain ongoing residence in Australia.

48. He has now been in Australia for almost 8 years, more than double the time normally required to achieve his objective of studying to get the skills to return and run a hotel.

49. While Mr Bhandari initially studied hospitality courses that the Tribunal accepts would help in establishing and running a hospitality business, his subsequent studies have been in unrelated courses and the Tribunal finds they are of questionable value to his future.

50. When asked why he does not study in India where he concedes the courses are available, he replied that he wished to learn international cuisine in Australia. The Tribunal does not accept this answer justifies the cost of his remaining with his family and studying in Australia.

51. Mr Bhandari says he has ties to his family and India, yet the fact that he has remained in Australia for so long where he and his wife have had a child means that he has significant ties and incentive to remain in Australia.

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

53. The Tribunal has found Mr Bhandari 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 Mr Bhandari 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 Mr Bhandari meets the prescribed criteria for that subclass. As the Tribunal has found that Mr Bhandari does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    The applications of the secondary applicants his wife Mrs Pooja Mahendru and their son Mr Pratham Bhandari were dependent on that of the primary applicant, and were made on no other basis. Having found that the visa applicant does not meet the essential criteria referred to above, the second-named applicants applications must also be affirmed.

    DECISION

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

    Tim Connellan
    Member