1503089 (Migration)

[2015] AATA 3028

1503089 (Migration) [2015] AATA 3028 (7 July 2015)

DECISION RECORD

APPLICANT:  Mr Amit Saharan

CASE NUMBER:  1503089

DIBP REFERENCE(S):  BCC2014/3582846

TRIBUNAL MEMBER:  Stuart Webb

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 July 2015 at 5:36pm

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 24 December 2014. The delegate decided to refuse to grant the visa on 10 February 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; the applicant arrived in August 2010,  had provided letters of offer relating to a Certificate IV in Engineering and an Advanced Diploma of Marketing, and per the PRISMS record he had previously been enrolled in:

   ·Certificate IV in Spoken and Written English – Further Studies

   ·Certificate III in Automotive Mechanical Technology

   ·Diploma of Business (Marketing)

   ·Diploma of Business (Frontline Management)

   ·Certificate III in Engineering – Fabrication Trade

   ·Certificate IV in Engineering

   ·Certificate IV in Business

   ·Diploma of Business

   ·Certificate IV in Frontline Management

   ·Advanced Diploma of Management

   PRISMS, and the documents provided with your application, indicate that you have completed the following courses since arriving in Australia:

   ·Certificate III in Business (Frontline Management)

   ·Certificate IV in Business

   ·Diploma of Business

   ·Certificate III in Engineering – Fabrication Trade

   ·Diploma of Management

4. The delegate considered a submission that the Advanced Diploma of Marketing is related to his previous studies; he has plans to establish and expand his mother’s Dairy Farm (8 buffalo and 5 cows) and also to support his father in starting his own business in Fabrication after his return from Qatar. The courses enrolled in will provide him with the required skills, which is why he has have returned to engineering studies; marketing is important to any business, and he wants to develop the ventures, his sister and his mother live in India, and his father is in Qatar and will be returning to India.

5. The delegate made the following findings:

   While I take into account the above, the primary objective of a Student visa holder in Australia must be to progress academically. You have not completed any courses above the Vocational Education and Training sector, maintaining enrolment in short low-value courses at this level. Further, while a person may seek a change in the direction of their study, I note that you have changed courses numerous times, holding 27 CoEs in total, and changing study streams from Automotive Mechanical Technology to Business to Engineering to Management to Marketing and back to Engineering. The courses you have been enrolled in have typically been of a short duration and low cost. This indicates you are using the student visa program to maintain residency in Australia rather than due to a genuine interest in study and academic progress.

   I also note that you already hold a diploma of civil engineering from Ramgarhia Polytechnic College. I therefore question the value of the Certificate IV in Engineering to your future. You have not provided any substantial reasons as to how either of the courses included in your application will benefit your future beyond the education awards you have already obtained. I give weight to the lack of apparent value of the courses to your future which indicates that you do not genuinely intend to stay in Australia temporarily and are using the student visa program as a means of maintaining residence in Australia.

   It is further noted that you applied for your Student visa on 24 December 2014, shortly before your current student visa was due to expire on 2 January 2015. At the time of your application, you did not have a CoE for either course, instead you had a letter of offer, indicating that you applied for your enrolment in your course shortly before lodging your application. It therefore appears that you have recommenced studying for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in this area of study and overall academic progress.

   Overall, given your lack of academic progress, your study history, your immigration history and the lack of value of the courses to your future, I find that you are using the Student visa program to circumvent permanent migration programs and I am not satisfied that you are a genuine applicant for entry and stay as a student and that you intend to stay in Australia temporarily.

   Furthermore, according to PRISMS, you did not commence the Certificate IV in Engineering on 15 January 2015 and your enrolment in this course was cancelled on 3 February 2015. There is no evidence that you are currently studying a registered course. While this information has not been put to you for comment and does not form the basis of this decision, it confirms that you are not a genuine applicant for entry and stay as a student.

6. The applicant appeared before the Tribunal on 1 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The applicant provided a copy of the delegate’s decision to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. 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)…

11. 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.

12. 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.

13. The applicant provided the following submission to the Tribunal.

    Please find attached:

    1. Current COE

    2. Educational Documents from

    a. From Cambridge College

    i. Completion Certificate for Certificate III in Business

    ii. Transcript of Partial Completion of Diploma of Management

    iii. Completion Letter for the Certificate III in Business

    iv. Completion Certificate for the Diploma of Management

    v. Completion Letter for Diploma of Management

    b. From Education Access Australia

    i. Completion Certificate for Certificate IV in Business

    ii. Completion Letter for Certificate IV in Business

    iii. Transcript of Certificate IV in Business

    iv. Completion Letter for the Diploma of Business

    v. Completion Certificate for the Diploma of Business

    c. From Sheila Baxter College

    i. Completion Certificate for Certificate III in Engineering – Fabrication Trade

    ii. Completion Letter for the Certificate III in Engineering – Fabrication Trade

    iii. Transcript of Certificate III in Engineering – Fabrication Trade

    Furthermore, our instructions are:

    I dispute the case officer’s claim that I had 27 COE’s.

    I applied under the Freedom of Information Act to obtain the information held by the department regarding all the COE’s ever issued under my name “Amit Saharan”.

    I received the following information regarding my COE’s

    1. Electronic record COE 6DCC7E22

    2. Electronic record COE 6DDA7162

    3. Electronic record COE 53CA4D79

    4. Electronic record COE 53CA6396

    5. Electronic record COE 36968B57

    6. Electronic record COE 4441DE35

    Please find them attached.

    I admit that I had changed my area of studies several times in the past. However, my intention was to start the Fabrication Business in India. My father is in the same field and has extensive experience in the same field. However, he has been working for a company and has no experience in business side. Therefore, I have decided to gain experience in the Business side and the Trade side.

    Previously, I have been enrolled and completed the following courses:

    Diploma of Business from Cambridge College between 14/09/2009 and 05/09/2010.

    Certificate III in Fabrication and Engineering from Sheila Baxter College between 19/11/2010 and 06/05/2012.
    Certificate IV and Diploma of Business from Education Access Australia between 30/07/2012 and 25/08/2013.

    Certificate IV and Advance Diploma of Management from Aveta College between 06/01/2014 and 04/01/2015

    I have enrolled in the Certificate IV in Fabrication and Engineering three times

    Firstly, in 2010, however, could not complete the course as the college as the issues with the trainer and we could not complete the Certificate III in time
    Secondly, in January 2015, this time I had medical issues and could not attend the college. Due to severity of condition I was not able to contact the college. Therefore they cancelled my COE.

    However, I have obtained a new COE for the same course starting from 21/05/2015.

    The courses mentioned by the case officer in the Decision Record (10 February 2015):

    Certificate IV in Spoken and Written English – Further Studies         

    Certificate III in Automotive Mechanical Technology

    I was enrolled in these courses when I initially applied for the student visa in 2008. However my visa was refused, so I never got a chance to study these courses.

    Now I am fully recovered from my medical condition and able to study fulltime. I would like to request you if you can let me complete my course so that I can fulfil my dream.

    I would be highly grateful to you. "

    The client has been advised and will provide the further information and evidence in due course. As soon as we received further instructions we will update the MRT.

14. The applicant noted that a series of enrolments were linked, that to enrol in one required enrolment in other courses. There had also been course code changes, which explained the number of enrolments. The Tribunal noted that the PRISMS record did contain a series of repeated enrolment details which made it appear that the applicant had enrolled in a large number of classes. The applicant did agree that there were certainly a number of enrolments. The applicant stated he had had health issues in Australia, the hot weather had caused him problems. The Tribunal noted that his region of India was also noted for its hot weather, so it was difficult to accept that Australia’s hot weather had caused him too much difficulty. The applicant also confirmed he was working as a cleaner in Australia.

15. The Tribunal discussed the applicant’s plans. The applicant stated that his father was involved in steel fabrication in Qatar, and was returning to India to establish a business. the applicant had returned 3 times to discuss his plans since first arriving in Australia in august 2009. The applicant stated that his engineering related experience would assist in the establishment of this business. The applicant also stated that he wanted to assist in developing his mother’s dairy business. The Tribunal noted that the cows and buffaloes owned by the applicant’s mother were limited in number, and that the applicant was likely to be over-qualified for the purpose of running this business. The Tribunal questioned the extent of the applicant’s studies, noting the courses that the applicant had finished, and that he was now seeking to extend his studies in areas that seemed to provide little benefit for the qualification he was to obtain. The applicant had just completed an Advanced Diploma of Management; the applicant was now seeking to undertake an Advanced Diploma of marketing. The Tribunal noted that the applicant had undertaken a series of Business related courses and it was difficult to see how this extra course would assist him in the future. The applicant stated that this would assist him in knowing how to run his own business. The applicant also stated, contradicting his evidence, that there was a lot of competition in India to get jobs, jobs were advertised and they sought minimum and desirable skills. He was trying to complete various courses to build his skills.

16. The Tribunal has considered the applicant’s student history. He has certainly enrolled in a number of courses during his residence in Australia, and has not completed most of them. The Tribunal accepts that the PRISMS record as presented does not truly represent his enrolments, but does note that the applicant has enrolled in and studies a number of similar courses over his extended period in Australia. In particular, the applicant has studied a number of business related courses, including frontline management, business, and management courses. The applicant now seeks to enrol in a marketing course, providing an extra year of studies. The applicant’s explanation of this extra degree is limited and contradictory, firstly explaining that it was for his own business opportunities, with his father and mother, and then to make him more employable on return to India. This vagueness on the part of the applicant is of extreme concern to the Tribunal, the applicant is embarking on a course with little explanation as to how it would assist him in the future in relation employment or business development opportunities. The Tribunal considers the explanation that it would assist him in his work and is his dream to be trite and simplistic, and not an explanation as to why he would embark on such a course for such a long period of time. The Tribunal does not accept that an Advanced Diploma of Marketing would assist the applicant to develop the mother’s dairy business, comprising of a dozen or so cows and buffalo, a very small business and not requiring such a qualification; nor assist in developing any business in steel fabrication with his father, given that such a business has not yet been established and the applicant has a series of like qualifications that he could rely upon to assist in establishing a business of this nature. The Tribunal does not accept that the applicant requires a year’s further studying in this area to assist in the establishment of this business, but that he is stating this for the purpose of gaining the visa. The Tribunal further does not consider that this further qualification will alter the applicant’s employment opportunities other than with his family. The Tribunal considers that the applicant’s enrolment in this course is being sought to extend his time in Australia, using the student visa program for residency rights and not for the purpose of studying or any future employment opportunity. The Tribunal places significant weight on this issue.

17. The applicant stated that he has plans to return home and assist his parents and the business opportunities. Yet he is not doing so, he is planning on remaining in Australia for a further year for limited purpose. The applicant has been in Australia for 6 years, and while he has returned for short visits to India, there is little for him to return to at present. That he seeks to remain in Australia for purposes other than studying causes the Tribunal to consider that there is little reason for the applicant to return to India. With respect to his circumstances in Australia, the applicant is employed and earning an Australian wage. This provides some reason for him to seek to remain in Australia. The Tribunal notes that he has no family in Australia. The Tribunal also notes that there are no significant migration issues relating to the applicant. The Tribunal places limited weight on these issues

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

19. 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

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

    Stuart Webb
    Member