1501093 (Migration)

[2016] AATA 3462

1501093 (Migration) [2016] AATA 3462 (7 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mandeep Kaur
Mr Sukhdip Singh
Miss Harman Kaur

CASE NUMBER:  1501093

DIBP REFERENCE(S):  BCC2014/3089741

MEMBER:Miriam Holmes

DATE:7 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2016 at 2:25pm

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 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 17 November 2014. The delegate decided to refuse to grant the visas on 7 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 primary 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 primary applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the primary applicant has the support of the relevant Minister (Subclass 576); or whether the primary applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visas because the primary applicant (Mrs Kaur) did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the primary applicant intends genuinely to stay in Australia temporarily.

4. The applicants appeared before the Tribunal on 23 February 2016 however the hearing did not proceed as Mr Singh required an interpreter. The applicants appeared before the Tribunal on 4 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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 primary 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 primary 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 primary applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that the primary applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the primary applicant’s circumstances; and

   (ii)the primary applicant’s immigration history; and

   (iii)if the primary applicant is a minor – the intentions of a parent, legal guardian or spouse of the primary applicant; and

   (iv)any other relevant matter; and

   (b)     …

9. In considering whether the primary 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 primary applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the primary applicant’s future;

   ·the primary 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 primary applicant is a minor, the intentions of a parent, legal guardian or spouse of the primary applicant; and

   ·any other relevant information provided by the primary applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the primary 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 primary applicant’s circumstances as a whole, in reaching a finding about whether the primary applicant satisfies the genuine temporary entrant criterion. The Tribunal had regard to the Direction and the matters discussed below.

11. The primary applicant (Mrs Kaur) was born in 1988 in India, and she is aged 27 years and is a citizen of India. The primary applicant is married to Mr Singh, the secondary applicant, and is the mother of Harman Kaur, the other secondary applicant. All three applicants currently reside in Australia.

12. The primary applicant and her husband arrived in Australia in June 2009. Their first child was born in 2010 and has been living in India with the primary applicant’s parents in law since 2010. The eldest daughter is now five years old and was not included in the current student visa application as she is not in Australia. The primary applicant did speak with the Immigration Department about obtaining a visa for her eldest child however she was advised by the Immigration Department that the primary applicant should have a visa for at least one years’ duration before she applies for her eldest child to travel to Australia. If the student visa is granted then the primary applicant would apply to bring her eldest daughter to Australia so her daughter can start primary school in Australia. In August 2012 the primary applicant gave birth to her second child, the other secondary applicant, who has remained in Australia.

13. The primary applicant’s parents currently reside in India. The primary applicant’s father is a farmer and operates the family farm in the Punjab. The family farm is 5 acres and her father grows rice, wheat, maize and sugar cane on the property. The primary applicant’s father undertakes no other employment. The primary applicant’s mother undertakes home duties in India.

14. The primary applicant has four siblings, two sisters and two brothers. The primary applicant’s elder sister is married and undertakes home duties looking after her child in India. The primary applicant’s second sister is currently residing in New Zealand and is not married. The primary applicant second sister is on a New Zealand student visa for approximately 12 months. The primary applicant’s first brother currently reside in India and works on the family farm assisting the primary applicant’s father. The primary applicant’s second brother is currently living and working in Dubai, and has been there for approximately 2 years.

15. The primary applicant’s parents in law also reside in India. Her parents in law also have a family farm and undertake agricultural activities. Their farm is approximately 4 acres and they grow beet and rice. The secondary applicant has no siblings.

16. The visa applicant attended high school in India and completed her high school education in 2006. In 2007 the primary applicant commenced a Bachelor of Arts degree at Garhshankar  College. The primary applicant undertook studies in Punjabi, Hindi, English, political science and history but only completed one year of the course. The primary applicant did not complete these tertiary studies. In 2008 the primary applicant undertook studies in order to pass the IELTS test. In 2008 the primary applicant also undertook work teaching in the primary school in her local village for approximately 6 months.

17. In March 2009 the primary applicant married the secondary applicant. The secondary applicant worked as a ticket seller in the transport industry in India. Between March 2009 and July 2009 the primary applicant and her husband resided with the secondary applicant’s parents in India.

18. The primary applicant subsequently applied for a visa to travel to Australia as a student. On 24 June 2009 the primary applicant was granted a student (subclass 572) visa until 25 April 2011. On 5 July 2009 the primary applicant and secondary applicant arrived in Australia.

19. The primary applicant told the Tribunal that her plan in coming to Australia was that she did not know what she wanted. The consultant (Indian migration agent) told her that there was scope in the graphics sector in Australia, and advised her to undertake study in a Certificate III in Printing and Graphics course. She said the migration agent in India also undertook coaching for the IELTs test. The primary applicant told the Tribunal that her main motive in coming to Australia was to obtain an education, to finish her course and study printing and graphics. She stated that the agent suggested the printing and graphics course should be her main course, although she wanted to study cookery and horticulture because her father is an agricultural person and so are her parents in law. She stated that she wanted to learn in Australia so that she can go back to India and explain the new techniques, so they could be more efficient in their agricultural businesses back in India. She stated the only reason she pursued printing and graphics course was because her migration agent suggested this course. The primary applicant stated that she did not research any courses that she might undertake in Australia before she travelled to Australia. Further she stated that she did not research about taking any courses in India prior to travelling to Australia. She stated that she would have been interested to work in the police sector in India, however it was not easy and required to much money and training. The Tribunal asked whether the primary applicant undertook any research about pursuing cookery and horticultural courses in India and she replied that she finished high school, and then did her degree, and then married and moved to Australia. She stated that she travelled to Australia to train rather than India because there was better education, training and institutions in Australia.

20. Between 6 July 2009 and 16 April 2010 the primary applicant successfully undertook and completed the Certificate III in Printing and Graphics course. She stated that after that period she had to undertake further reassessments of the final tasks and on 14 April 2011 she was awarded the Certificate III in Printing and Graphics.

21. Between 26 April 2010 and 25 June 2010 the primary applicant successfully undertook and completed a Certificate III in Frontline Management. The Certificate III in Frontline Management was issued on 25 June 2010. The Tribunal asked the primary applicant what was the purpose of these studies and the primary applicant stated to extend her student visa. She stated that the confirmation of enrolment for this course was provided to her in India and was part of the two years study in Australia. She stated that she had no plan in relation to her career in undertaking this course and that she obtained the confirmation of enrolment in India as her agent recommended the course to her. The Tribunal asked the primary applicant why she studied a course that she had no interest in and she stated that the agent just gave her the confirmation of enrolment. She stated that she did the printing and graphics course on the basis that the related occupation was on the skills shortage occupation list, however the printing and graphics occupation was removed from the list. She stated that she studied printing and graphics course with a view to obtaining a skilled visa.

22. Between November 2010 and June 2011 the primary applicant successfully undertook and completed a Diploma of Management. This qualification was awarded on 2 July 2011. The primary applicant stated that she pursued these studies as it was similar to her frontline management course and had some of the same subjects which she was familiar with. The Tribunal asked why she undertook that course particularly and the primary applicant responded that she wanted to stay in Australia. She also noted that her College offered the course, and she did not wish to move colleges, and that her agent had obtained this confirmation enrolment for her when she was in India. The Tribunal asked the primary applicant why she did not consider changing courses given that she was not interested in the course but wished to pursue cooking and horticulture courses. The primary applicant replied that she obtained the confirmation of enrolment in India and she did not wish to change courses but wanted to finish all the courses that her agent had chosen for her.

23. On 6 June 2011 the primary applicant was granted a second student (subclass 572) visa until 15 September 2012.

24. Between 18 July 2011 and 15 January 2012 the primary applicant undertook and successfully completed a Certificate IV in Small Business Management. The primary applicant stated that she undertook this business course because she wanted to know more about the business sector, particularly if she returned to India and opened a restaurant. She wanted to know how to operate a business in India, and what planning to open a restaurant or small cafe in India would involve. She said that she studied this course in order to secure the necessary knowledge to open her own small business.

25. Between January 2012 and 15 July 2012 the primary applicant undertook and successfully completed an Advanced Diploma of Management. She pursued this course as it was a follow on from her Certificate IV course in small business management and gave her further information regarding running a business.

26. The Tribunal queried with the primary applicant why she did not return to India after completing the business courses. The primary applicant stated that she had not done her horticultural course by this time and she had obtained employment in the horticulture sector on a farm and so she enrolled in an horticulture course. The Tribunal asked the primary applicant why she was undertaking studies in horticulture when her plan was to open a restaurant. The primary applicant stated that she wanted to know something about horticultural so that she could help her father and her in-laws in India. The Tribunal queried why the primary applicant had waited so many years to take undertake these courses to help her family. The primary applicant replied “I don’t know”.

27. On 18 January 2013 the primary applicant was granted her third student (subclass 572) visa until 30 November 2014.

28. Between 17 December 2012 and the end of 2013 the primary applicant undertook and successfully completed a Certificate III in Production Nursery. She stated that the course took some time because she started at one College, but there was a problem with an audit at the College, and so she had to transfer to another College to complete her studies. She stated that she was initially issued with a Certificate III in Horticultural (Wholesale Nursery), however she spoke to the institution and requested that they issue the Certificate III in Production Nursery, which was subsequently issued on 12 April 2014. The primary applicant stated that she completed only one horticultural course which was a Certificate III in Production Nursery. The primary applicant stated that she started her Diploma in Production Nursery however she lost her job in horticulture and started working at an Indian restaurant, so stopped her study in production nursery.

29. On 17 November 2014 the primary applicant applied for her fourth student visa. This is the application currently under consideration by the Tribunal. The fourth student visa application was made on the basis that the primary applicant wished to pursue studies for a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality. These courses were due to commence on 17 March 2014 and be completed by the April 2016. The primary applicant stated that she has completed most of the Certificate III course with only two units left. She stated that one unit was a work placement and the institution had asked her to complete a work placement at a restaurant facility that they had arranged. The primary applicant refused to undertake the work placement at the restaurant facility nominated by the institution as she had already obtained work experience at the Indian restaurant. The institution advised her that if she wished to be granted a Certificate III then she would need to pay them for the work placement that they had arranged at the nominated employer, however the primary applicant refused to pay. The primary applicant stated that she has completed the one remaining unit, other than the work placement unit, however the institution will not credit the completion of this unit because of her refusal to pay for the work placement. She stated that she did complete this course between 17 March 2014 and 16 March 2015. The primary applicant provided to the Tribunal a printout headed “Client enrolment form” from the institution setting out the completion of studies in the Certificate III in Commercial Cookery course. The Tribunal notes that this documentation indicates that the last unit completed where the primary applicant has been assessed as competent was finalised in September 2014 and there is no indication that she has completed any other units in the Certificate III course since that time. The primary applicant stated that she did continue to study and did complete units in the Certificate III course even though it is not noted in the printout headed “Client enrolment form”.

30. The primary applicant told the Tribunal that she has also undertaken a number of units in the Certificate for Commercial Cookery course and continued her studies at the Institute until November 2015. The primary applicant stated that she ceased undertaking her studies when there her enrolment in the diploma of hospitality was cancelled, after her student visa application was refused. The primary applicant stated that she had tried to attend the institution from November 2015 however the institution would not allow her to study and would not provide a new confirmation of enrolment. She stated that the institution knew that she no longer held a student visa and they still wanted to have money for the work placement which she refused to pay, and therefore would not let her enrol again to continue with her studies.

31. In the statement of purpose lodged with the Department the applicant stated that in studying the commercial cookery and hospitality courses that her career goal is to maximise the opportunity in online fast-moving consumer good sector which holds high potential for grocery and packaged good which is diet specific. She states that she wants to employ her skills to expand her father’s product line which will eventually increase revenue and market share. Later in the document she states that she wants to maximise her opportunity in India’s full-service restaurant category, although does not explain how. The Tribunal notes that during the hearing the primary applicant made no reference to expanding her father’s product line or working in the fast moving consumer goods sector related to groceries.

32. Since November 2015 the primary applicant states that she has not undertaken any studies and has become the primary carer for her daughter and is not working.

33. Since arriving in Australia the primary applicant has worked for two different employers. The primary applicant worked for a farm in Clyde washing vegetables and packing. She undertook this work for approximately a year.

34. Between 2014 and 2015 the primary applicant worked in an Indian restaurant for 20 hours per week in Moe. Her duties included working in the kitchen and working at the front desk taking telephone orders and sometimes undertaking waitressing work. The primary applicant stated that she ceased working at the Indian restaurant as the employer stated that he had other employees and he did not need her anymore. The primary applicant stated that she has applied for other jobs in cafes and restaurants however she has not been successful in obtaining alternative work. At other times whilst she has been in Australia the primary applicant has not worked because she has been pregnant and given birth to her two daughters.

1. The secondary applicant has been working in Australia in the farming sector since he arrived in 2009. The secondary applicant has done a range of jobs in the agricultural sector including driving tractors, supervising, fencing, weeding, picking and packing on various farms. For most of the period he has worked 20 hours per week in accordance with the student visa conditions. For the last two years the secondary applicant has worked on a vegetable farm near Hastings. The vegetable farm grows spinach, broccoli, coriander leaves and beetroot. For the last year the secondary applicant has been working on a full-time basis and is earning $500 or more per week.

2. The primary applicant stated that her plan was to finish her studies in her cookery course if she was granted a visa and then to return to India. She stated that upon returning to India she would open a restaurant in India in her home city. When asked whether she had prepared a business plan for a restaurant the primary applicant stated no, not really. She stated that in the main shopping centre there is big scope for her as it is often visited by overseas tourists. The Tribunal asked how the primary applicant would finance the new restaurant and she stated that her parents have the farm with regular income and her in-laws also have some savings.

3. The primary applicant stated that they have little savings in Australia and they are just surviving in Australia to meet their needs. The primary applicant stated they have no income or assets in India.

4. The primary applicant has held four student visas to study in Australia. The first student visa was granted from 24 June 2009 until 25 April 2011. The primary applicant was granted a second student visa on 6 June 2011 until 15 September 2012. On 18 January 2013 the primary applicant was granted third student visa until 30 November 2014. The Tribunal is considering the fourth student visa application lodged by the primary applicant on 17 November 2014.

5. The applicants have resided in Australia since 2009. The primary applicant has returned to India on two occasions  - once in 2010 with her eldest daughter to take her daughter to live there with her parents in law. She returned again in 2013 to take her second daughter to visit her family and in-laws as he had not seen her family for a long time. The secondary applicant has returned to India on one occasion in 2010 and on two occasions in 2011. The secondary applicant returned twice in 2011, once to attend his uncle’s marriage and on the second time occasion to obtain medical treatment in India.

6. The Tribunal indicated that it may not be satisfied that the primary applicant intends genuinely to stay in Australia temporarily. The Tribunal noted that there are a number of factors that indicate it may not be satisfied the primary applicant intends genuinely to stay in Australia temporarily -  given the low-level courses undertaken by the primary applicant, the number of courses undertaken by the primary applicant, that the courses have been unrelated to one another, the primary applicant has been in Australia since 2009 and only returned twice to India, that her husband is currently working in Australia and has been securing a good income and they have no income or assets in India. The primary applicant replied that she did not know what to say. She stated that she just wanted to extend the visa to complete her course and did not want another extension, this was her last attempt. The Tribunal queried why it would be satisfied that she would return to India after completing her current course of study. The primary applicant responded that if she obtained a certificate then she would return to India. The Tribunal noted that on one view the family of the primary applicant may be financially better off if the family was to remain in Australia rather than to return to India. The primary visa applicant was silent and then stated sorry, I have no answer.

7. The Tribunal asked the primary applicant if she had anything else to tell the Tribunal and she replied that she had nothing else to say. The secondary applicant stated that if the visa was granted that the primary visa applicant would attend classes as required under the visa. The primary applicant stated that they will return to India one day because her parents-in-law are alone in India and they will definitely return. She requested the Tribunal give her further time to finish a certificate and then return to India. The primary applicant stated that if the student visa was granted then she would transfer to another College and she would complete her Certificate III and Certificate IV courses and transfer the credits for the work she has already completed at the current Institute.

8. After carefully considering the matters above, the Tribunal is not satisfied that the primary applicant intends genuinely to stay in Australia temporarily. The primary applicant has strong family in ties in India, including her parents, her parents in law, her eldest daughter and two siblings. However the Tribunal notes that the primary applicant is currently in Australia with her husband and her youngest child and would seek to bring her eldest child to Australia if the student visa was granted.

9. The primary applicant has resided in Australia since 2009 and has only returned to India on two occasions for relatively brief periods. The Tribunal considers that the primary applicant has settled in Australia with her husband and her second child and would seek to bring her eldest child to Australia to commence primary school. The history of residence in Australia and limited trips back to India indicate that the primary applicant has settled in Australia and does not have strong ties or incentives to return to India.

10. The primary applicant has held three student visas and is now seeking a fourth student visa. The primary applicant has undertaken a range of courses in her time in Australia. These courses have been unrelated to one another - the primary applicant has studied printing and graphics, management, small business management, horticulture and more recently commercial cookery. The primary applicant gave evidence that she undertook the studies in printing and graphics with a view to obtaining a skilled visa, on the advice of her migration agent. However the printing and graphics occupation was removed from the skilled occupations list. Further the primary applicant gave evidence that she pursued studies in Frontline Management and the Diploma of Management as these were courses recommended to her by her Indian migration agent and for which he obtained confirmations of enrolment.

11. At the outset the primary applicant stated she wished to study horticulture and cookery in Australia, yet between 2009 and 2012 she pursued others studies on the advice of the migration agent. It was clear to the Tribunal the primary applicant had no career planning in undertaking these courses, other than a view to obtaining a skilled visa after the printing and graphics course was completed was unable to pursue this plan when the skilled occupation list was changed. The primary applicant undertook no research of courses in Australia prior to arriving in Australia and solely relied on the advice of her migration agent. The primary applicant could give no compelling reason as to why she pursued studies in management and business. The Tribunal considered this evidence indicative of the primary applicant travelling to Australia with a view to establishing herself and her family with employment in Australia. The primary applicant then pursued courses in horticulture and in commercial cookery. The primary applicant stated that she pursued studies in horticulture with a view to assisting her family back in India in operating their farms. Yet after completing this course the primary applicant remained in Australia and pursued commercial cookery courses. The primary applicant explained she pursued commercial cookery courses with a view to establishing a restaurant in India on her return. The Tribunal was not persuaded the primary applicant undertook a wide range of courses with a view to assisting her family in their agricultural business or with a view to establishing a restaurant in India. If the primary applicant wished to assist her family in India after the agricultural course then she would have returned to India. In relation to the evidence that she wished to establish a restaurant the Tribunal notes that she has undertaken no business planning for this and appears to be relying on family resources to establish a restaurant. In the statement of purpose lodged with the department the applicant does not explicitly refer to opening a restaurant, although comments that she wants to maximise her opportunity in India’s full-service restaurant category, rather she refers to expanding her father’s product line and to the online fast-moving consumer goods sector. The Tribunal simply did not accept the primary applicant intends to return to India to establish a restaurant in India in light of her student history, and the other evidence available. The Tribunal finds that the primary applicant has undertaken a number of low-level courses over six years with a view to remaining in Australia. The Tribunal considers that the primary applicant has used the student visa program as a basis to remain resident in Australia.

12. The primary applicant has no assets or income in India, other than the family financial support sent to Australia. The primary applicant’s husband held employment as a ticket seller in the transport industry in India prior to arriving in Australia. The primary applicants husband has been gainfully employed since arriving in Australia in the agricultural industry and is currently employed and earning in excess of $500 per week. Further the primary applicant has held employment in two positions whilst resident in Australia. The Tribunal considers the primary applicant has a financial incentive to remain in Australia whilst her husband can continue to work and support the family. The Tribunal considers the secondary applicant can generate a higher income living in Australia than his previous employment as a ticket seller in India. The Tribunal does not accept the applicants or their family does have the resources to establish a restaurant upon returning to India. The Tribunal noted when it specifically raised the issue of the financial incentive to remain in Australia rather than returning to India that the primary applicant was silent in response and then stated sorry I have no answer.

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

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

15. In relation to the secondary applicants, as the primary applicant does not meet the primary criteria in cl.572.223 the Tribunal cannot be satisfied that the secondary visa applicants meet the secondary applicant requirements. Therefore the decisions in respect of the secondary applicants must also be affirmed.

    DECISION

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

    Miriam Holmes
    Senior Member