1501040 (Migration)

[2016] AATA 3283

1501040 (Migration) [2016] AATA 3283 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davinder Singh

CASE NUMBER:  1501040

DIBP REFERENCE(S):  CLF2014/53505

MEMBER:Karen Synon

DATE:17 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2016 at 9:33am

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 8 April 2014. The delegate decided to refuse to grant the visa on 9 January 2015. 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 she was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant applied for review of the primary decision on 23 January 2015 and provided a copy of the department’s decision to the Tribunal.

5. The visa application form records that the applicant applied for this student visa in order to complete a Diploma of Hospitality Management, a Certificate IV in Business, a Diploma in Business, a Diploma of Management and an Advanced Diploma of Management.

6. The primary decision records that in response to an invitation by the Department the applicant provided a statement on 2 May in relation to the Genuine Temporary Entrance criteria.  This statement is recorded in the primary decision thus:

   You have completed a Bachelor of Commerce in India and decided to study Master of Professional Accounting in Charles Sturt University.

   You indicated that you decided to change courses primarily because you found the teaching methods hard to follow and difficulties coping with the coursework.

   You state you found employment with Taco Bill as a part-time cook and enjoyed cooking which made you change your career goals.

   You have submitted that you have completed a Certificate III and IV in Hospitality as well as a Diploma of Hospitality and now want continue your studies in the Business/Management fields to help better understand how to run a business.

   You have indicated in your statement that after completing your studies you want to open a Mexican restaurant in India due to the increased demand new cuisines.

7. The applicant provided no substantive written submissions to the Tribunal.

8. The applicant appeared before the Tribunal on 16 February 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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)     …

12. 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.

13. 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.

14. The Tribunal has had regard to the following matters in considering whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily.  It discussed with the applicant at the hearing a range of matters arising from Direction 53 and raised with him a number of concerns arising on the evidence before it.

15. The applicant is aged 26.  He first arrived in Australia in March 2012 aged 22 on a 573 visa to study a Master of Professional Accounting.

16. The highest education he achieved in India was a Bachelor of Commerce; a 3 year course.  He did not work in India before coming to Australia and spent the 18 months between finishing his course and coming here doing his IELTS and applying for the visa.

17. He enrolled to do the Master of Professional Accounting because when he was in India he was looking for a Masters in Commerce and found this course.  He could not complete it because he thought it would be very easy to study in Australia and it was a new environment.  He tried hard but failed.  Also his English was not good then.

18. In the almost 4 years he has been in Australia he has successfully completed a:

    Certificate III in Hospitality at the Technical Institute Victoria; a one year course;

    Certificate IV in Hospitality at the Technical Institute Victoria; a 6 month course;

    Diploma of Hospitality at the Technical Institute Victoria; a 6 month course;

    Certificate IV in Business, a 6 month course; and

    Diploma of Management; a 6 month course.

19. He completed his Diploma of Management in November 2016 and started his Diploma of Leadership and Management in January 2016.  He then wants to study an Advanced Diploma of Leadership and Management and an Advanced Diploma of Management.  The applicant said he wants to do these courses because he is still working as a cook in a Mexican restaurant and maybe when he finishes these course he might open his own Mexican restaurant in India.

20. Asked what specifically the Diploma of Leadership and Management and the Advanced Diploma of Leadership and Management will give him that all of the courses he has previously done including his Bachelor of Commerce, Certificates III and IV in Hospitality, Diploma of Hospitality, Certificate IV in Business and Diploma of Management do not, the applicant responded “maybe by doing a Bachelor of Commerce he can’t get any job in India…that’s why he started hospitality”.

21. After completing these additional 3 courses he thinks he will still be a cook but when he does all these courses he may be able to own and manage a restaurant and do the accounts.  He said he will open this in Delhi, India because although he is from the Punjab no one in Punjab likes Mexican food.  There is more scope in Delhi.  Asked how he would finance it, what the market is for Mexican food in Delhi and about the extent and nature of his research, the applicant only provided only vague responses.  He said he would maybe go to a bank for a loan and maybe manage half of it (the cost) himself or with his parents.  He said people in Delhi like different foods because lots of new restaurants are coming there including Nandos.  He thinks there is a Mexican restaurant there called ‘Cactus’.  He saw this online.  He said when he was in Deli about 6 years ago he specifically looked at Mexican restaurants.  Given his evidence that he was doing all of these courses in order to start a Mexican restaurant the Tribunal asked again about the specific research he had done and, for example, what the rent costs would be in the area of Delhi that he proposes to establish his restaurant and what the fit-out costs would be.  The applicant said he will do the research later.  He agreed it was more of a wish/hope than a researched plan.

22. The applicant’s father lives in the Punjab and is a government employee in the railways.  His mother died in 2001.  He has a brother aged 23 who lives in the Punjab and is doing a Bachelor of Business Administration.  He has 3 cousins from his father’s side living in Australia.  They are all citizens and all originally came here to study.  They are all married.  He lives with his cousins.  He does not have a girlfriend and is not engaged to be married.

23. In Australia he has been employed at Taco Bills in Beaconsfield for 3 years but for the past year has been employed at Taco Bills in Chadstone.  He was also employed at Nandos in 2012.  After this he left but went back to work there in 2014.  He now only works at Taco Bills and works there 20 hours a week.

24. The applicant’s plan in coming to Australia was because it could not get a job in India.  In 2012 he thought he would complete a professional course; his masters, and then go back to India to find a job.  This was a two-year course and he originally thought he would just be here for two years.  Since arriving 4 years ago the applicant has not returned to India for a visit because he was studying for the first two years and then in 2014 he was waiting for his visa.  He said he wanted to go to India but had his studies and then his visa was refused.  The Tribunal noted that it was open to the applicant to seek a bridging visa that would allow him to visit India and noted that this appears to undermine his relationships and ties to India.

25. The applicant has very little in savings in Australia and has no other assets here except his car.  He has no assets or savings in India.  His father his paying his fees.  The applicant has no job offers in Australia at the present time although if offered a job in Australia (for example by Taco Bills) he would take it if he was allowed and does not have to study.  If someone offered him a job in India if it was in hospitality he would think about it.

26. The Tribunal invited the applicant to comment on the department’s decision that he had not demonstrated a compelling case as to why he made such a significant change of direction (that is from a Bachelor of Commerce in India and the Master of Professional Accounting in Australia) to cooking and hospitality courses in such a short time frame, that he was unable to provide details as to how the proposed study would substantively improve his future employment prospects and remuneration level in his home country or a third country and the delegate’s conclusion that the applicant had not demonstrated how the proposed courses are relevant to his academic and or employment background or will assist him in attaining his educational and career goals.  The applicant said he was genuine and his history is genuine.  The applicant said he has had no gaps in his study history has had no issues raised with him about his visa by immigration.

27. The Tribunal noted that it has sent the applicant a copy of Direction 53 which is the Direction against which the Tribunal must assess the genuine temporary entrant criterion explaining that it is not a checklist but rather a guide the Tribunal (and the department) uses to weigh up the applicant’s circumstances as a whole.  It invited the applicant to comment on any matters within it and any matter which he would like to talk more about.  He said he has not read it.  The Tribunal provided a copy of Direction 53 to the applicant at the hearing and allowed him time to read through it.  After doing so the applicant said he did not want to highlight or comment on anything.

28. The Tribunal expressed its concern about whether it could be satisfied that the applicant is a genuine temporary entrant in light of: arriving in Australia 2012 and never returning in India since; that he was granted a 573 for higher education studies and within 6 months transferred to vocational education courses; and since his arrival has only has undertaken a series of low-level, inexpensive, short, vocational courses and not progressed in his studies beyond that level and importantly that he has not completed in Australia any course of the same level that he had completed in India prior to his arrival and therefore its concern that he may be using the student visa program to maintain his residence in Australia.  The applicant responded that it was not in his mind to maintain residency in Australia; it was just the circumstances at that time.  He said he didn’t cope with his studies and his English was not good and he was working in hospitality and that’s why he changed his course to hospitality.

29. The Tribunal also expressed its concern about the relevance of his proposed 3 courses to his future career ambitions given he has already completed a Bachelor of Commerce, a Certificate III in Hospitality, a IV in Hospitality, a Diploma of Hospitality, a Certificate IV in Business and a Diploma of Management and said it was finding it difficult to be persuaded that all of these courses together do not give him the necessary education and skills to start a Mexican restaurant in Delhi.  Invited to comment the applicant declined to do so.

30. The Tribunal also noted its concerns that when applying for this visa he indicated he intended to study a Diploma of Hospitality Management, a Certificate IV in Business, a Diploma in Business, a Diploma of Management, and an Advanced Diploma of Management and said that this appeared to be a scattergun approach to applying for as many courses as he possibly could and that none of these attain the level of education he had before he came to Australia having completed a bachelor’s degree in India.  The Tribunal noted that the applicant did not appear to be progressing in his study or academic achievement.  Invited to comment the applicant declined to do so.  He also declined to make any final submissions or comments.

31. After carefully considering the applicant's evidence and the matters above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  The applicant does have ties to India; his father and brother live there.  However while the applicant has no immediate family in Australia he does have extended family and lives with his 3 cousins.  Therefore while the applicant has strong family ties to India he also has extended family in Australia.  Further, the applicant has resided in Australia for the last four years and has not left Australia since his arrival.  The applicant's history of travel does not indicate that he has a strong incentive to return to India.  In making this observation the Tribunal has considered the applicant’s explanation for this being that he was studying and then waiting for the decision on his visa both at the department and Tribunal level however it has always been open to him to travel between courses and to seek a bridging visa that allowed to travel and return to Australia during the course of his review should have wanted to do so.

32. On the evidence before it the Tribunal is not persuaded that the presence of his father and brother in India, that the applicant’s circumstances in his home country offer him significant inducement to make his stay in Australia a temporary stay.

33. The applicant has no income or job offer in India and he has no assets in India.  Since arriving in Australia in 2012 the applicant has been employed regularly at Taco Bills and also Nandos and is generating 20 hours a week income from this employment.  This indicates he has stronger financial ties to Australia than to India, given his employment history in Australia since his arrival.

34. The applicant has now lived in Australia for almost four years.  While he has successfully completed a number of courses and appears to have been continuously engaged in studies since arriving, the courses are all short, inexpensive courses at a vocational level and the applicant has not progressed to higher education studies in that period despite the fact that he arrived in Australia as the holder of a bachelor’s degree.  While the Tribunal accepts that the applicant appears to have worked steadily and achieved a number of vocational qualifications it has not been persuaded that the 3 additional courses the applicant wants to do will add to his employment or remuneration prospects in India in any significant way.  The Tribunal is not satisfied that the completion of a Diploma of Leadership and Management, an Advanced Diploma of Leadership and Management and an Advanced Diploma of Management will result in any demonstrable improvement in the applicant’s employment or remuneration in India given he has already completed a Bachelor of Commerce, a Certificate III in Hospitality, a Certificate IV in Hospitality, a Diploma of Hospitality, a Certificate IV in Business and a Diploma of Management.

35. In any case the applicant has not demonstrated to the Tribunal’s satisfaction that these 3 additional courses are for a specific career path or goal.  While he gave evidence that he plans to return to India at the completion of these courses and may operate and run a Mexican restaurant in Delhi he had no clear sense of how this would happen and does not appear to have done any research in relation to this proposed business venture.  The Tribunal did not find the applicant’s evidence in relation to his stated intention of opening a Mexican restaurant in Delhi to be credible.

36. The Tribunal formed the view that the applicant was pursuing these additional three courses with a view to maintaining ongoing residence in Australia.  It is not persuaded that they are of value to the applicant’s future because they are not consistent with the level of education he had when he arrived in Australia; they are not additionally necessary to his proposed future employment, that is opening a Mexican restaurant in Delhi, and no evidence has been provided that these additional 3 courses will add to the remuneration he could expect to receive in India or a third country.

37. Given the opportunity to draw the Tribunal’s attention to other considerations contained in Direction 53 (after giving him a copy of the Direction at the hearing because he had not read the copy sent to him with the hearing invitation) the applicant declined to do so and therefore did not add or highlight any considerations not already discussed with him at length.

38. On the basis of the above, and having considered the applicant's circumstances in both Australia and India, the value of the proposed courses to his future, his 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).

1. 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

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

   Karen Synon
   Member