1515742 (Migration)

[2016] AATA 4583

1515742 (Migration) [2016] AATA 4583 (24 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JASWANT SINGH GREWAL

CASE NUMBER:  1515742

DIBP REFERENCE(S):  BCC2015/2816247

MEMBER:Gabrielle Cullen

DATE:24 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2016 at 10:55am

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 27 September 2015. The delegate decided to refuse to grant the visa on 30 October 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 applicant applied for the visa on 27 September 2015.

4. Movement records indicate that the applicant arrived in Australia on 23 June 2009 on a subclass 572 visa valid to 15 March 2012. He was granted a subclass 457 visa from 13 April 2012 to 10 July 2013 and a further subclass 572 visa to 30 October 2015.

5. Certificate of Enrolments attached to the applicant’s application referred to the applicant studying a Diploma of Marketing from 6 October 2015 to1 May 2016 and an Advanced Diploma of Marketing from 2 May 2016 to 27 November 2016. Evidence before the Tribunal indicates he has successfully completed the Diploma of Marketing, is passing the Advanced Diploma of Marketing and wishes to undertake a Bachelor of Business in the future. At the time of this decision no CoE or letter of offer had been submitted to study a Bachelor of Business.

6. During the time the applicant has held a student visa the evidence from the Department decision[1] and that provided by the applicant at hearing and in documentation provided by the applicant indicates he has been enrolled in and successfully completed the following courses.

   [1] The Department decision was attached to the Application for Review.

   ·General English – 2009

   ·Certificate III in Carpentry – 2009/2010

   ·Diploma of Building and Construction – 2010/2011

   ·Certificate IV in Small Business Management - 2013

   ·Diploma of Management - 2013/2014

   ·Diploma of Business - 2014/2015

   ·Advanced Diploma of Business – 2015

   ·Diploma of Marketing – 2015/6

7. On 27 October 2015 the applicant provided a supporting statement for the genuine temporary entrant criterion, stating that he wishes to study the Marketing courses as it will assist him in job opportunities. As to why he has chosen to undertake these courses, he states he may undertake a Bachelor of Business in the future, he has not studied marketing courses before, career opportunities as a senior administrator, he may study a Bachelor of marketing in the future and these Diplomas give him skills and expertise across a range of business and marketing areas. He outlines why he chooses to study in Australia and claims that these courses in marketing are relevant to his academic background as he has studied small business management and a Diploma of Management.

8. The delegate decided to refuse to grant the visa on 30 October 2015. The delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned at the range of courses studied by the applicant, all at the vocational level with no course progression. She also noted that he has been in Australia since 23 June 2009 without departing and has frequently changed his study pathway.

9. On 18 November 2015 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. On 12 August 2016 the Tribunal wrote to the applicant and invited him to attend a telephone hearing on 19 October 2016. The letter, among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

10. The applicant resubmitted the Statement submitted to the Department, although dated 12 October 2016, financial information, evidence of OSHC and an IELTS test with his Application for Review. Prior to the Tribunal hearing he submitted evidence that he had since completed the Diploma of Marketing and an academic record indicating he was part way though the Advanced Diploma of Marketing.

11. The applicant appeared before the Tribunal by telephone on 20 October 2016 to give evidence and present arguments. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

12. As to his education in India, he stated he finished the equivalent of year 12 and then came to Australia. He said his father works as a truck driver and has a farm and milk business. He said his brother does nothing.

13. As to his current study, he said he is doing an Advanced Diploma of Marketing, is successfully completing it and wants to then undertake a Bachelor of Marketing. He said the Advance Diploma of Marketing finishes in mid-November 2016.

14. The Tribunal discussed with him the courses he has undertaken in Australia and what he has successfully completed, outlined in detail above.

15. It asked him whether he had departed Australia since his initial arrival and he indicated he had not.

16. He said he came to study in 2009 in Australia as he wanted to improve his English and to improve his employment opportunities. He said he successfully completed his carpentry and building course and obtained a 457 visa working as a carpenter but the business he was working for went broke and he then went on a student visa.

17. He said he no longer works as a carpenter but works part-time as a gyprocker.

18. As to why he studied the business, management and marketing courses after he returned to a subclass 572 visa, he said he was looking for opportunities once the business he worked in went broke. He said he tried to find a job but then applied for a student visa. As to why he is studying the marketing courses, he said so he can become an administrator and he will look for a job in the future.

19. The Tribunal raised with him that his answer seemed lacking in detail and quite vague as to why he was studying his current course and the previous business and management courses over a period of three years. He said as a carpenter studying these courses would help him with the business, know the customers and give him more experience.

20. The Tribunal raised with him that it seemed he had been studying similar courses over the last three years and his answers as to why he was studying seemed vague.

21. It asked him why he was studying Marketing and he said for knowledge. He said he wanted to then enrol in a Bachelor of Marketing. As to why he needs the knowledge in this area, he said to obtain further experience and to obtain a better job. As to what job, he said something administrative.

22. He said he has no family in Australia, except a cousin and is not in a relationship. He said he has no military commitments in India nor fears return because of civil or political unrest there.

23. As to why he is studying in Australia and not his own country, he said that there are more opportunities in Australia, it is flexible and good for his language skills.

24. The Tribunal raised with him that it had some concern as to whether he is a genuine temporary entrant and raised with him that it has concerns he is using the student visa program to maintain residence.

25. It raised with him that he had been in Australia for over 7 years without returning to India and that this may indicate he has stronger ties to Australia than India. It raised with him that his evidence appeared vague and lacking in detail as to the value of his course and future employment intentions. It also raised with him that all of his study appeared at the vocational level with little course progression and recent courses seem similar in nature and he appeared vague as to why he was studying these courses, particularly marketing. It again referred to his length of time in Australia.

26. It noted that the evidence indicates that he had successfully completed all the courses he has been enrolled in and had been continuously studying while holding student visas. He said he had completed all his study with no complaints from his education provider.

27. The Tribunal asked again why he had undertaken the courses he had since 2013 and the value of these courses to his future; he said he thought it would benefit him and he did a trade first and believes he needs more knowledge in business.

28. As to whether he had any future career in mind or had done any research, he said he wants to focus on his study, he has been busy as full time and when finished will look for a job.

29. When the Tribunal asked him whether he had anything to add he replied in the negative.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

31. 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)         …

32. 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.

33. 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. In making the decision the Tribunal has considered all the evidence before the Tribunal with regard to the applicant’s circumstances and immigration history, and all matters as outlined in Direction No. 53 and any other matters it considers relevant.

34. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

35. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the courses he has undertaken in Australia give him better opportunities. The Tribunal accepts that he has closer family ties to India which is indicative of a person who is only a temporary entrant and wishes to return to their country.

36. The Tribunal also accepts that he is currently enrolled in the Advanced Diploma of Marketing and attending the course. It accepts he will finish this course in mid-November 2016 and he is on track to successfully complete the course. It accepts he recently successfully completed the Diploma of Marketing and previously successfully completed the courses outlined above and in the times outlined above. It accepts he has been enrolled in the courses he claims and studying while on the present and past student visas. However the successful completion of courses, which is indicative of a genuine student, is one of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

37. The above information indicates the applicant has been in Australia since 23 June 2009, a period of over 7 years and not returned to India in that time. While not necessarily indicative that a person does not wish to remain in Australia temporarily, it is of concern and one of the considerations.

38. The Tribunal accepts his evidence as credible as to why he studied the Carpentry and Building courses until 2011. However the Tribunal views as significant that since 2013, since the expiry of his subclass 457 visa, for approximately 3 years he has been studying courses only at the vocational level in a range of areas from business, management and marketing. The Tribunal views the period he has stayed in Australia studying courses only at a vocational level in a range of areas indicative of a person using the student visa program to maintain residence.

39. While there may be good reason for it the Tribunal is not satisfied on the evidence before it that he has provided credible evidence as to the reasons he has undertaken the courses he has since 2013, all at the vocational level, and in particular the recent marketing courses. His evidence as to why he has studied these courses and their relevance to his future career aim was lacking in detail. When asked a number of times at the hearing before me; he said his future career aim is to return to India and work as an administrator, and due to career opportunities. He said he also liked marketing and wanted to do a Bachelor of Marketing. He said he had not looked into obtaining a job as he is too busy studying. He said it would also help him with his business in his trade.

40. In his written statement he said he is studying the marketing courses to increase the job opportunities, he has not studied marketing courses before, he may study a Bachelor of Business or Marketing and he will have skills across and expertise in a range of business and marketing areas. He referred to being an administrator and a senior marketing manager in the future.

41. When asked at hearing to provide further evidence as to why he has studied these courses and is studying marketing courses the applicant did not elaborate further rather than providing evidence in general terms, as noted above. His evidence that he has not looked into any job positions or researched the area and will do that in the future is of significant concern, particularly as his evidence is that he is, in part, undertaking these courses to improve his job prospects and job opportunities. The Tribunal is of the view if he was genuine in this reason for undertaking the marketing courses he would have looked into the positions available in India and how the course would help his job prospects and opportunities, even if he is busy studying in Australia.

42. His evidence that studying these courses would help him with his business in his trade also contradicts his claim he is studying the courses to obtain a job as an administrator or in marketing.

43. The Tribunal is of the view that his lack of detailed and clear evidence as to his future career aim and why he has undertaken the courses he has, plus his lack of research into the future career opportunities to be significant, particularly as he has been in Australia since 2009. These factors lead the Tribunal to not be satisfied that he has undertaken the range of courses he has, all at the vocational level, and is undertaking the Advanced Diploma of Marketing for any career aim or any other stated aim. Rather it is of the view he is using the student visa program to maintain residence in Australia,

44. As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2009, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.

45. In making my decision I have considered all the evidence before me, including that he is currently enrolled and successfully completing an Advanced Diploma of marketing which finishes in November 2016, he has stronger family ties in India than Australia, that he has successfully completed all the courses enrolled in and remained enrolled while on the student visas and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

46. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

47. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

48. 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 he intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

49. 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

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

   Gabrielle Cullen
   Member

   
   

   Gabrielle Cullen
   Member