1420384 (Migration)

[2015] AATA 3583

1420384 (Migration) [2015] AATA 3583 (30 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Niravkumar Mahendrakumar Bhatt

CASE NUMBER:  1420384

DIBP REFERENCE(S):  CLF2014/96541

MEMBER:Miriam Holmes

DATE:30 October 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 30 October 2015 at 3:50pm

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, Mr Bhatt, applied to the Department of Immigration for the visa on 9 July 2014. The delegate decided to refuse to grant the visa on 24 November 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 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 29 October 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent, although his representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. 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.

10. 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.

11. The Tribunal had regard to the documentary evidence provided by the applicant during the course of the visa application process and during the review application process. The Tribunal also took into consideration the evidence of the applicant at the Tribunal hearing. At the outset the Tribunal notes that the Tribunal did not consider the applicant to be a compelling or persuasive witness, particularly as he was unable to answer some questions for example what he did after March 2010 or after January 2015.

12. The applicant was born in 1982 in India and is 33 years of age. The applicant is a citizen of India.

13. The applicant completed his high schooling in India in 1999. He then undertook a Bachelor of Commerce degree. He completed his first and second year but did not complete his third year of his bachelor’s course at South Dujarat University, India.

14. In 2002 the applicant commenced looking for a job and found part-time employment in 2003  selling cell phones. He undertook this work for two years. He then found employment marketing cosmetic items and he undertook this part time work for an 18 month period.

15. In around 2007 the applicant discussed with his friends about applying for an Australian visa. He realised that he would have to complete the English language requirements and so commenced studying an English course and undertaking an IELTS test. In 2007 he undertook the IELTS test but did he not achieve the required score. He spoke to an agent who obtained confirmation of enrolments for him to undertake an ELICOS course at Latrobe University in Australia. The applicant then applied for a student visa to travel to Australia. On 11 August 2008 a student (subclass 575) visa was granted to the applicant until 25 November 2009. The applicant arrived in Australia on 25 August 2008.

16. The applicant stated that his plan in coming to Australia in 2008 was to finish his English-language courses and then enrol in any course, whether it is hospitality or some other course at diploma level, and then return to India.

17. After arriving in Australia the applicant undertook foundation studies in English at Latrobe University between 28 August 2008 and 6 February 2009. Between 18 May 2009 and 19 June 2009 the applicant successfully undertook a Certificate IV in spoken and written English at Bayside International College.

18. The applicant was granted a second student (subclass 572) visa from 25 November 2009 until 15 March 2012.

19. The applicant enrolled in a Certificate III in hospitality (commercial cookery) course at MRP International College. The applicant told the Tribunal that he enrolled in a cooking course because one of his friends said that the hospitality (commercial cookery) course was popular in Australia and then he could return back to India and open a catering business. So the applicant thought that he would choose this course. The applicant told the Tribunal that he started the course in November 2009 and that he attended classes regularly and undertook assignments. The Tribunal notes that it has no documentary evidence from the institution that the applicant undertook any coursework or successfully completed any part of the course. The applicant told the Tribunal that he did not have any evidence of attendance or any transcript academic results.  The only evidence he had was his confirmation of enrolment form.  The applicant stated that he continued his studies in January 2010, when the college cancelled his confirmation of enrolment. The applicant said he was not sure why his enrolment was cancelled. The applicant stated that he did not stop attending classes but he did miss a few classes because his mother was sick and he was very “disturbed” and he had been close to his mother since childhood. The Tribunal asked when he missed classes and he stated that he missed classes in November and December 2009. The applicant stated that he did pay fees in January 2010 and February 2010 and that his mother was sick in January 2010 and February 2010. The Tribunal queried the applicant why he would miss classes in November and December 2009 when his mother was sick in January 2010. The applicant stated maybe it was a time mistake – but then had no answer and could not explain to the Tribunal why he would miss classes in 2009 when his mother became ill the following year. The Tribunal notes that the PRISMs records indicate the enrolment in this Certificate III course ceased on 24 March 2010 when the student notified of his cessation of studies. The applicant stated he could not understand why the enrolment was cancelled. He stated that he went to college and he did pay the fees, so he does understand why his confirmation of enrolment was cancelled in March 2010. The Tribunal is not satisfied on the evidence available at the applicant did attend the certificate III in hospitality commercial cookery course between November 2009 and March 2010 or thereafter.

20. The Tribunal noted that there appeared to be a gap in any enrolment in any course between 24 March 2010 and April 2011. The applicant stated that he did attend classes until March 2010. When the Tribunal asked why there was a gap after March 2010 and what was the applicant doing he did not respond with any answer. The Tribunal then prompted the applicant and reminded him that he had lodged a medical certificate in relation to his mother’s ill-health in March 2010. The applicant then stated that he was disturbed because of his mother’s illness at that time. He said that he wanted to go to India to see his mother but he could not afford the extra expenses to travel to India. He said that he asked his father for the funds to return to India but his father said he could not pay any extra fees as he already paid tuition fees for the applicant’s education in Australia. The applicant stated that he stayed in Australia but he lost all hope when his mother became ill. The Tribunal finds based on the medical certificate dated 11 March 2010 that the applicant’s mother did have a medical condition and required bed rest. However, the Tribunal notes it has received no evidence of any psychological or medical attention in 2010 for the applicant. The Tribunal finds that between March 2010 in November 2010 applicant did not undertake any studies in accordance with the student visa.

21. One 28 November 2010 the applicant left Australia and returned to India and he remained in India until 11 January 2011. The applicant travelled back to India to attend his arranged wedding to his Indian wife. The applicant married on 10 December 2011 in India.

22. After returning to Australia in January 2011 the applicant told the Tribunal that he enrolled in an advanced diploma in hospitality at Melbourne Institute of Tourism and Hospitality. The applicant stated that he studied this course between 11 April 2011 and May 2013. He stated that he did return to India for a brief period between November 2011 and December 2011 but resumed his studies when he returned to Australia. The Tribunal noted that it had received an interim result advice dated 7 October 2011 confirming that the applicant did undertake studies between 11 April 2011 and 7 October 2011 in the advanced diploma of hospitality course. The Tribunal however noticed that there was no evidence of the applicant resuming his studies upon returning back to Australia in December 2011. The applicant stated that he attended the classes but he does not have a certificate to confirm that he completed the advanced diploma of hospitality. The applicant stated that he had copies of assignments that he had completed but he did not have any other documentation to confirm that he had attended or completed the course. In later in evidence he stated that he did not complete the advanced diploma of hospitality course. On the evidence, provided the Tribunal is not satisfied that the applicant completed the advanced diploma of hospitality course. Further the Tribunal is not satisfied that the applicant undertook any studies in the advanced diploma of hospitality course after October 2011.

23. The Tribunal received documentary evidence of the applicant undertaking studies in an English course between 21 May 2012 and 22 June 2012 at TK Melbourne, and the Tribunal accepts that the applicant undertook these studies and completed the course. The applicant stated that he undertook this English course because he required it when he was lodging his application for his third student visa in March 2012.

24. The applicant told the Tribunal that the visa application lodged in March 2012 was refused so he went to the Migration Review Tribunal and they remitted the matter back and the student visa was ultimately granted. The applicant was granted a third student (subclass 572) visa from 4 December 2013 until 9 July 2014.

25. The Tribunal finds that there is a gap in the applicant’s studies between November 2011 and June 2013 (save for the 5 week course in June 2012).

26. The applicant told the Tribunal that in June 2013 he enrolled in a Diploma of Management course at Della International. He stated that he continued these studies until August 2014. In support of his evidence he provided to the Tribunal a document from Della International College dated 11 August 2014 noting that the applicant has successfully completed 75% of his studies in the Diploma of Management course. He also provided a letter dated 14 October 2013 from Della International College stating that the applicant was enrolled in a Diploma of Management and his attendance and results are satisfactory. The Tribunal finds based on the documentary evidence that the applicant was undertaking study in the Diploma of Management course at Della International College between June 2013 and 11 August 2014. The applicant told the Tribunal that he did not finish the course. He stated that he had completed most of the course and only had three or four assignments left to complete. However when he was advised in November 2014 that his fourth student visa application was unsuccessful he stopped studying and felt bad about himself. The applicant initially told the Tribunal that he last studied in November 2014 when he received a negative decision from the Department in relation to his student visa application although later he stated that he finished studying in January 2015. The Tribunal has no documentary evidence of the applicant undertaking any study between 12 August 2014 and January 2015. The Tribunal is prepared to accept the applicant studied until his visa application was refused in November 2014. The Tribunal finds that the applicant has not studied between November 2014 and October 2015. The Tribunal finds that the applicant did not complete the Diploma of Management course at Della International College.

27. The applicant lodged the fourth student visa application on 9 July 2014. In support of that application the applicant provided a confirmation of enrolment in a Diploma in Marketing course and Advanced Diploma in Marketing course. The applicant told the Tribunal that he has not commenced these marketing courses. He stated that he has been so disturbed by the refusal of his visa application that he lost hope. The applicant agreed that the confirmation of enrolment in the diploma of marketing course was cancelled in January 2015 as he had not paid the required fees for this course.

28. The Tribunal noted that the applicant had ceased studying in 2015 and asked the applicant what he had been doing since January 2015 if he had not been studying. He told the Tribunal that he been doing “nothing” and that he had been waiting for the Tribunal hearing. The applicant stated he had been disturbed because of the second refusal of a student Visa application, and he lost hope and was confused. The Tribunal asked whether the applicant had sought the advice of a psychologist or sought cancelling because of his emotional upset. The applicant stated he had not sought any such assistance. The Tribunal finds that since January 2015 until the date of hearing the applicant has not undertaken any studies and has been waiting for a Tribunal hearing.

29. Prior to the hearing, the applicant provided to the Tribunal a new confirmation of enrolment for a Diploma of Marketing at Della International Course that is due to commence on 26 October 2015. The applicant told the Tribunal that the course was due to commence shortly in November 2015. The Tribunal asked the applicant why he was seeking to a study marketing course. The applicant stated that whilst in India he did gain experience in sales and marketing both in cell phones and in cosmetics. He’s hoping to study the marketing course so that he can obtain a good job in India and or open his own business. He stated that his preference was to own his own catering business he knows he has no experience in Australia and if that does not work, then he will look at opening his own cell phone business selling cell phones. The applicant agreed that he had no experience or qualifications in cooking for the purposes of a catering business. The Tribunal asked the applicant whether he had a business plan and the applicant replied that his father had said that when he’s finished the study that he would help him out when he returned to India.

30. The applicant has been employed in various jobs whilst living in Australia since 2008. In January 2009 the applicant commenced working as a housekeeper at the Hilton Hotel making beds and undertaking cleaning duties for a period of six months. The applicant gave evidence that he worked as a kitchen hand in a small restaurant washing dishes for approximately 7 to 8 months. Initially he told the Tribunal that was in 2010 but later told the Tribunal that he undertook that work in 2011, after his marriage. Since 2011 the applicant has worked for a friend who operates a cleaning business. He states that he works part time for 20 hours a week for $16 per hour cleaning offices in the city and it is an on-call job. He told the Tribunal there was no fixed hours and he was working in his friend’s business. The Tribunal knows the applicant initially stated that he’d only been undertaking this job for the last 9 to 10 months however after further questioning he stated that he had been undertaking this work between 2011 and 2015. The applicant stated to the Tribunal that he did not come to Australia to earn money, he came to Australia to complete studies and then go back. The Tribunal finds that the applicant has worked since 2009 in Australia in a variety of different occupations and that more recently since 2011 he has worked undertaking office cleaning during the evening.

31. The applicant has no assets in India and has no assets in Australia. The applicant is currently residing with another couple (a friend and his wife), with whom he is sharing accommodation in suburban Melbourne.

32. The applicant has returned to India on three occasions since arriving in Australia in 2008. He travelled to India between November 2010 and 11 January 2011 to marry in India. He returned again to India for approximately one month between November 2011 and December 2011. The applicant’s last trip to India was for a period of approximately 5 to 6 weeks between 20 January 2013 and 1 March 2013. The applicant has not returned to India since 2013 and has not seen his wife since that time.

33. In response to the decision of the delegate not accepting the applicant had a genuine intention to stay in Australia temporarily, the applicant told the Tribunal that he was not simply seeking to stay in Australia in order to make money. He told the Tribunal that if he wished to make money then he would bring his wife to Australia so she could work also and then he could make more money. He stated his intention was to study and then return to India. The Applicant also stated that he is aware that he has been in Australia for 7 years and he has not finished many courses however he is not in Australia to make money but to study and then go back to India.

1. The Tribunal discussed with the applicant its concern that the applicant was using student Visa program as a means to maintain residency in Australia. In response the applicant stated that there were differences in the education system between India and Australia said yesterday though I courses with more practical classes involve. The applicant stated that he would have to pay more fees in India. The applicant stated that he wished to remain in Australia to finish his studies and then go back to India.

2. The Tribunal has carefully considered the evidence in this case and it is not satisfied taking into account the applicant’s circumstances immigration history and other relevant matters, that the applicant intends genuinely to stay in Australia temporarily.

3. The Tribunal took into consideration that the applicant has strong family ties in India. His parents both reside in India and his wife also resides in India. However the Tribunal notes that the applicant has not returned to see his wife since March 2013 and has only visited her on two occasions for relatively short periods since their marriage in December 2010.

4. The Tribunal took into consideration that the applicant has been in Australia since 2008 and in that time he has only successfully completed three English courses. The first English course was completed in February 2009 the second English course at Bayside International College was finished in June 2009. The third English course the applicant successfully completed was between May and June 2012. The applicant’s academic history shows a poor history of attendance and lack of progress and the failure to complete any studies in any substantial courses other than English over the entire seven years in Australia. The Tribunal notes that in this regard the applicant has had three student visas from 11 August 2008 until 15 March 2012 and has had ample time to complete a substantive vocational or educational course. He is now seeking a fourth student visa. In light of the applicant’s history the Tribunal has little confidence the applicant will attend and successfully complete the course he is now enrolled in.

5. The Tribunal also took into consideration that the applicant has undertaken a number of low-level courses and been enrolled in a number of courses yet has failed to complete these courses. There is evidence that the applicant undertook part of the Diploma of Management course between June 2013 and August 2014 and there is evidence that the applicant undertook part of the advanced diploma of hospitality course between April 2011 and October 2011. However on his own evidence he did not complete these courses. The applicant told the Tribunal that his plan was to open a catering business or to obtain a good job in sales in India. Given the lack of progress by the applicant and the diverse range of courses that he has undertaken the Tribunal has some reservations that these courses have been undertaken with a view to returning to India to establish a catering business and/ or obtain a good job in sales. In this regard the Tribunal was concerned when the applicant gave evidence that he chose the hospitality course on the advice of a friend who suggested to him because the courses were popular in Australia and he could open and the catering business back in India. The applicant did not appear to have any commitment to a career in the hospitality (cooking) industry or sales industry when giving evidence to the Tribunal. Further the Tribunal notes that the applicant has undertaken employment in Australia primarily in the cleaning industry since 2011, an occupation unrelated to the hospitality industry or to the sales industry. The Tribunal notes that the applicant undertook work for a short period work as a kitchen hand in a restaurant in Australia and has no qualifications or other experience in the hospitality (cooking) industry. The Tribunal is not satisfied that the applicant has chosen a series of courses with a view to assisting the applicant to obtain employment or improve  his employment prospects in India.

6. The Tribunal also took into consideration that there are a number of gaps in the applicant’s study history in Australia. As noted above the Tribunal has found that the applicant did not undertake any studies between November 2009 and April 2011, between October 2011 and June 2013 (save for one English course of five weeks duration in May/ June 2012) and he has not studied since November 2014.  The Tribunal was not persuaded that the applicant was unable to undertake studies in 2010 due to the heart condition of his mother. The Tribunal took into consideration that the applicant did not return to India and he produced no evidence of his own psychological distress which inhibited his ability to study in 2010. There is no explanation for the lack of study between October 2011 and June 2013 rather the applicant maintains that he did study in that period but had no documentary evidence of undertaking studies in that period or successfully completing the course that he was enrolled in for that period namely the advanced diploma of hospitality. Further the applicant has failed to study since November 2014 and has been waiting for a Tribunal hearing in relation to his refused student Visa application. The Tribunal considered these extended breaks in study were indicative of a person who was using the student Visa program to maintain residence in Australia rather than to pursue courses of study to advance their career and employment opportunities in their home country.

7. The Tribunal took into consideration that the applicant has been employed for several years in Australia and generating income, he has no employment or assets in in in India, these factors are indicative of the applicant having stronger economic ties to Australia.

8. After considering the matters above, and having considered the applicant’s circumstances, immigration history, 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).

9. 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

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

    Miriam Holmes
    Senior Member