Aujla (Migration)

[2019] AATA 1331

Aujla (Migration) [2019] AATA 1331 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Manjot Singh Aujla
Mrs Gurleen Kaur Aujla
Miss Tarleen Kaur Aujla

CASE NUMBER:  1823048

DIBP REFERENCE(S):  BCC2017/1954929

MEMBER:Stephen Conwell

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 March 2019 at 1:40 pm (VIC time)

DATE OF WRITTEN RECORD:                17 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentive to return to home country – onshore for nine years – academic progression – repetitive and overlapping subjects at the vocational level – add little value to applicant’s future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.311

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 26 July 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 28 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for his Student visa on 2 June 2017.  By decision dated 26 July 2018 a delegate of the Department of Home Affairs refused his application on the ground that the delegate was not satisfied that Mr Aujla was a genuine temporary entrant and therefore did not satisfy clause 500.212 of Schedule 2 of the Regulations.

4. Mr Aujla sought to have that decision reviewed by this Tribunal and he attached a copy of that decision with his application.  Immediately prior to today's hearing he also completed a GTE questionnaire given to him by the Tribunal.

5. In his oral evidence the applicant confirmed that he was applying for a Student visa and that he did not claim to meet the criteria for a Student Guardian visa.  In support of his application the applicant provided evidence of a current COE, a Graduate Certificate in Management (Learning) as well as a GTE statement. 

6. The delegate's decision noted that the applicant at the time of the delegate's decision was enrolled to undertake a Graduate Diploma of Management (Learning) which is the same as his current enrolment.  In today's hearing the applicant explained that he had completed more than 50 per cent of that course, however, he had reason to return to his home country of India for several weeks at which point the course provider cancelled his enrolment, which has therefore required him to re-enrol in order to complete that study.

7. In his completed GTE form the applicant notes that he completed a Certificate IV in Business Management in 2012, a Diploma of Hospitality in 2013, a Diploma of Business in 2015, an Advanced Diploma of Management in 2015, an Advanced Diploma of Business in 2016, and an Advanced Diploma of Hospitality in 2017/2018.

8. The Tribunal notes that the applicant first arrived in Australia in April 2009 and has therefore been onshore on temporary visas for almost 10 years during which time (according to the delegate's decision) the applicant had spent only 116 days outside of Australia up to the date of decision, 26 July 2018.  That fact caused the delegate to have concern that the applicant may not have sufficient incentive to return to their home country on completion of their studies.

9. As explained in the course of the hearing decision makers must have regard to the factors in Direction 69, and in the course of the hearing the Tribunal discussed with the applicant the circumstances in their home country of India.  The applicant explained that his family is relevantly affluent.  His mother runs a family restaurant and he has an uncle who also owns a restaurant or restaurants.  He has a brother who is a European citizen and living and working in the UK.  He owns property and other assets overseas either directly or in co-ownership with his mother.

10. The applicant explained that he has a comfortable financial environment back in India and it is his intention to return there upon completion of his current studies.  The Tribunal accepts that the applicant comes from an affluent family in India with business interests in hospitality.  However, the Tribunal notes that the applicant has been in Australia for almost 10 years with very little time spent offshore, and the Tribunal is not satisfied that the applicant has sufficient incentive to return to India upon completion of his studies.

11. In regard to the applicant's potential circumstances in Australia the Tribunal notes that the applicant's spouse and child are included in the Student visa application.  The dependent applicant, Sharlene Khour Aujla was born in Australia and according to the applicant's evidence has only made one visit back to the home country of India for a few weeks.  However, both she and the applicant's wife have returned to Australia which means all three applicants are currently onshore.

12. The Tribunal finds that having his immediate family in Australia with him and given the length of time that they have remained in Australia plus the fact that the applicant's daughter was born in Australia and has spent most of her young life onshore, the Tribunal is not satisfied that the applicant has sufficient incentive to quit Australia upon completion of his studies.

13. In regard to the value of the applicant's current studies to his future the Tribunal notes that there is no pre-requisite for someone working in hospitality to have formal qualifications of any sort.  However, the Tribunal acknowledges that some qualifications in hospitality and business would assist an aspiring applicant to embark upon such a career, however the Tribunal notes that the applicant has the benefit of an established and successful family restaurant business which he would no doubt hope to return and assume control over in years to come.

14. The Tribunal noted, and the applicant did not dispute, that in the nine years that he has been onshore he has completed a series of vocational subjects with a great deal of repetition and overlap between management and business studies, and as a result the Tribunal is not satisfied that there is evidence of academic progression in the applicant's study history over the course of his nine years onshore.  The Tribunal therefore does not consider the applicant's study history to be the progress of a genuine student but indicates that he is using the Student visa program to maintain residence in Australia and to engage in employment whilst onshore.

15. The applicant stated that he has been employed in a part-time chef capacity primarily with a hospitality company called Koko Black, and he has progressed to the role of an assistant manager.  He maintains, and the Tribunal accepts, that he has worked within his visa conditions.  However, on the evidence it appears to the Tribunal that the applicant's major focus for staying onshore is for employment rather than for the pursuit and academic progression of his studies.

16. The Tribunal notes that in the nine years whilst he has been onshore the applicant has established a stable and comfortable working life for him and his family onshore.  Although the Tribunal does accept that the applicant has completed all of his studies that he has been enrolled in, the Tribunal gives greater weight to the fact that his study history reveals a great deal of repetition and overlap of subjects, and the Tribunal is not satisfied that it shows genuine academic progression.

17. The applicant confirmed that there are no military, political, social, ethnic or religious reasons why he may not return to India.  The Tribunal also takes into account the economic circumstances between the two countries and finds that the disparity between the two offers the applicant further incentive to use the Student visa program to maintain ongoing residence in Australia. 

18. Having regard to his current studies and noting that the applicant had completed a Bachelor of Arts degree prior to first arriving in Australia and having regard to the high degree of repetition and overlap between the vocational studies that the applicant has been pursuing during his time in Australia the Tribunal finds that the applicant's current studies will add little value to his career goals as he expresses them to be.

19. The applicant explained that it has always been his intention to acquire skills, knowledge and qualifications that he would bring offshore and put to use.  As put to the applicant during the hearing he might have at several times in the past four or five years departed Australia upon completing a qualification, for instance he might have departed upon completion of his Diploma of Business in 2015, he might have departed Australia when he completed the Advanced Diploma of Business in 2016, he might even have departed Australia at the end of last year when he completed the Advanced Diploma of Hospitality, however, the applicant chose not to avail himself of those several opportunities across those years which causes the Tribunal to question whether or not he is a genuine student.

20. The Tribunal is not persuaded that the applicant's current enrolment will add value to his career prospects or remuneration prospects given the applicant's family business and to which he will no doubt return at some point in the future. 

21. Having regard to his immigration history the Tribunal notes the applicant's advice that he has not applied for any other visas in Australia which the Tribunal gives weight to.  However, the Tribunal also notes that the applicant has been in Australia for almost 10 years and has been studying entirely within the vocational area with no evidence of academic progression.

22. The Tribunal also notes that during his lengthy time onshore the applicant and his family have spent very little time offshore which again causes the Tribunal to question whether or not the applicant is a genuine student and genuine temporary entrant. 

23. Having regard to the applicant's circumstances and having regard also to Direction 69 the Tribunal is not satisfied that the applicant is a genuine student who genuinely intends to stay temporarily in Australia, therefore the Tribunal finds that the applicant does not meet clause 500.212.  It is therefore the decision of the Tribunal to affirm the decision under review.

    Dependant Applicants

24. As the Tribunal notes that the dependant applicants are members of the applicant's family unit they must each satisfy the requirements of clause 500.311.  As the applicant does not meet the criteria for the grant of a Student visa the Tribunal must also affirm the decision to refuse to grant a Student visa to each of the dependent applicants.

    DECISION

25. The Tribunal affirms the decisions under review.

    Stephen Conwell
    Member