1506317 (Migration)

[2016] AATA 4085

1506317 (Migration) [2016] AATA 4085 (5 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhjinder Singh
Mrs Sawroop Kaur Atwal

CASE NUMBER:  1506317

DIBP REFERENCE(S):  BCC2015/799486

MEMBER:Adrian Ho

DATE:5 July 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2016 at 6:09pm

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 12 March 2015. The delegate decided to refuse to grant the visas on 23 April 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.

4. Mr Singh appeared before the Tribunal on 5 July 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. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   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.

   Subclass 580

8. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

9. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

10. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    Genuine Temporary Entrant

11. A major 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. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

15. The tribunal then had a detailed discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

16. The applicant’s evidence at hearing is that he arrived in Australia in 2009 on a student visa and in the 6-7 years since he has studied a range of VET sector courses in business, management and marketing across two student visas.

17. He claims that his latest study, which he proposes for the visa he seeks, is important to his ambition to open a restaurant.  His evidence is that he intends to try to open a restaurant in Australia first, and if that fails, to try open a restaurant in India.

18. His evidence was that he travelled to Bali in March 2016 and lodged an offshore application for a permanent Subclass 187 visa with his current restaurant employer in Demark, WA, as his sponsor.  He stated that his plan was to work for the sponsor for the required two years, continue working as a restaurant manager in Australia, for 4-5 years in total, and then attempt to open a restaurant in Australia.

19. His evidence was that his family visit him in Australia, and he makes annual trips to India to see them. On the evidence, as he himself suggested, he is able to manage those relationships from Australia.  His family and personal connections overseas are therefore no distinct incentive for him to cease residence in Australia.  Furthermore, he stated that his wife was with him in Australia and as his closest personal connection, she also serves as no incentive for him to cease residence in Australia.

20. He stated that he wished to live in Australia.  It was suggested that was consistent with him having applied for a permanent visa and with his stated plan to open a restaurant in Australia after gaining more experience in Australia.

21. It was further suggested that these considerations appeared more directly relevant to what his intentions were than his written material, including his general statement a folio 53 of the Department file or the submission at folio 49 of the tribunal file.

22. As suggested, the clearest indication of the applicant’s intentions are his oral evidence of having applied for a permanent visa and his oral evidence as to his 4-5 year work plan in Australia which leads to him opening, owning and running a restaurant in Australia.  As suggested at hearing, the tribunal places the greatest weight on this evidence because it is the most probative evidence available of what the applicant’s intentions in fact are.  In fact, those statements are a direct articulation of the applicant’s intentions where no material inference is required for a conclusion as to his intentions.  When asked to comment in this regard, he stated that he would stay if his permanent residence is granted.

23. The applicant stated that his wife did not propose to study at this stage and the tribunal accepts this.  As suggested, she is unable to meet the primary criteria in any subclass.

24. The evidence in relation to other factors suggested in Direction 53 not discussed above is unremarkable and is as suggested at hearing outweighed by the direct relevance of the applicant’s own evidence at hearing as to his intentions. 

25. Those intentions are not for a temporary stay in Australia.  As suggested, the tribunal cannot foresee a time in the future when the applicant intends to cease his residence in Australia.  And as suggested more than once to him, it is not to point that he would leave Australia if his bid for permanent residence is refused; what matters is that he applied for permanent residence because he presently, positively, intends and wishes to reside in Australia.

26. On the basis of the 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), or all of its equivalents for other subclasses.

27. 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.

28. The secondary visa applicant does not propose any study and on the evidence has no relevant course enrolment and would not meet the primary criteria for any subclass.  She also fails against relevant secondary criteria.

29. 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

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

    Adrian Ho
    Member