Badhan (Migration)

[2018] AATA 5937

Badhan (Migration) [2018] AATA 5937 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohandeep Singh Badhan
Mrs Sunita Badhan

CASE NUMBER:  1619913

DIBP REFERENCE(S):  BCC2016/2842605

MEMBER:P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 June 2018 at 11:17 am (WA time)

DATE OF WRITTEN RECORD:                27 June 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions under review.

Statement made on 27 June 2018 at 3:03pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –genuine intention to stay in Australia temporarily – multiple courses in unrelated subjects – incentives to return or stay – value of study to future employment – using further study to maintain residency – decision under review affirmed

LEGISLATION  

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 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 15 November 2016 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 8 June 2018 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 to the Tribunal on 25 November 2016 for a review of a decision made on 15 November 2016 by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a student class visa, (Class TU), under section 65 of the Migration Act 1958.

4. The Department refused the application because it was not satisfied that the applicant met the criteria to be a genuine temporary entrant for the grant of a student visa, and so did not satisfy clause 500.212 of schedule 2 of the Regulations. 

5. Decisions in respect of genuineness to stay in Australia temporarily are made in accordance with Ministerial Direction Number 69, which is entitled "Assessing the Genuine Temporary Entrant Criterion for Student and Student Guardian Visa Applications", and that Direction sets out the factors that must be taken into account when assessing the criterion for student visa applications.

6. Direction 69 is made in accordance with section 499 of the Migration Act. A copy of Direction 69 was sent to the applicant with his invitation to attend a hearing today, and that invitation was sent on 9 May 2018. Mr Badhan and his wife, Mrs Badhan, attended the hearing today and gave oral evidence. they also provided evidence which the Tribunal has on its file, which is folioed from page 38-61, and that evidence included a copy of a genuine temporary entrant letter, a Certificate III in Printing and Graphic Arts, a Diploma of Interactive Digital Media, a Diploma of Management, a Diploma of Nursing (Enrolled-Division 2 nursing), a conditional offer letter for Bachelor of Nursing from ECU, proof of surgery in November 2015, mental health placements in respect of the Diploma of Nursing course, applications for a Bachelor of Science in Nursing from ECU and emails from TIWA for course packages, an ECU application for Bachelor of Science in Nursing; an offer letter from Murdoch University for the Bachelor of Science in Nursing, an application for the Bachelor of Science in Nursing refusal from Murdoch University, application for Bachelor of Science (Nursing) refusal from Victoria University.

7. Also attached to the submissions was a certificate of enrolment, or Confirmation of Enrolment, in an Advanced Diploma of Community Sector Management.  The applicant's oral evidence was consistent with his statement that he included with his submissions on 1 June 2018, and also with his response, which the Tribunal also considered as evidence, to his response to a “Request for Student Visa Information” questionnaire issued under section 359(2) of the Migration Act 1954.  Mr Badhan responded to the questions in that and signed that form on 26 April 2018.  That is at folio 20-24 of the Tribunal's file. 

8. By way of background, Mr Badhan said that he had arrived in Australia first in 2009.  He undertook an Interactive Digital Media Diploma and a Certificate III in Printing and Graphic Arts.  He also undertook a Diploma of Management to assist him with printing.  He found that the skills in those courses were not suitable for ongoing employment given the economic environment, and decided to undertake a nursing career.  He commenced a Diploma of Nursing at the North Metropolitan TAFE and applied for a visa in respect of that on 27 August 2016.  The Department refused that application on 15 November 2016, and it is that application which is before the Tribunal today.

9. The Tribunal considered the criteria in Ministerial Direction 69 and asked the applicant questions in respect of those criteria. 

10. The applicant said that he had a father, a mother, brother and sister still home in India.  He was able to call them and video call them two or three times a week, and his father messages him every day.  The applicant felt that that was sufficient to maintain a strong relationship, or at least maintain a relationship with his family back in India.  He last visited India in 2016, and between 2009 and 2018 had visited India four times.  His father owns five acres and when his father passes away the applicant and his brother will inherit shares in that property.  The applicant completed Year 12 studies in India and has no work experience from back home.

11. The Tribunal is of the view that there are not significant incentives for the applicant to return to India.  In Australia the applicant lives with his wife.  He is currently enrolled and provided the Tribunal with a Certificate of Enrolment in an Advanced Diploma in Community Sector Management.  The Tribunal notes that that Certificate of Enrolment was obtained after the Tribunal invited the applicant to the hearing, and the applicant gave evidence that his migration agent had told him that he would not succeed at the Tribunal without being enrolled in a course.  The applicant gave evidence that he was unable to successfully enrol in the Bachelor of Nursing because he had been initially unable to pass the English requirements, and then eventually because of the status of his visa was not suitable for the education institutions.  The Tribunal doesn’t accept these submissions.

12. The applicant agreed that he had not studied from December 2016 until the Diploma of Community Sector Management starts in July 2018, and in that period has been working around 40 hours a week with Barrett's Bread, and 17-and-a-half hours a week at Woolworths.  The Tribunal finds that there is significant incentive for the applicant to retain residence in Australia, and that that is the purpose of his current enrolment in the Community Sector Management course.  In respect to the Community Sector Management Course, the applicant said that it would have more relation to aged care, and that it would assist him find work at home in India. 

13. The Tribunal notes that the applicant has been in Australia for nine years now and has not returned to India to undertake work.  The Tribunal accepts that the industry may shift, but taking into account the applicant's age and long-term residence in Australia notes that there is becoming less and less incentive for the applicant to return to India.  The applicant said that without a degree he had minimal prospects of obtaining work in India.  He agreed that he could work on his father's farm, but that farming was very difficult given climate change and the current farming conditions.  The applicant said that age is an issue getting into university in India.  His age currently is 29 and he suggests that that is an issue for getting into university and for obtaining a job.  The Tribunal acknowledges this but does not see that the situation will improve as time goes on.

14. The applicant believed that with a Bachelor of Nursing to his name he would be able to earn approximately $AU1000 per month as a nurse in India.  The Tribunal contrasts that with the income that Mr Badhan has currently declared that he is earning to the Tribunal, which ends up being a salary of around $54,000, taking into account his employment at Woolworths Caltex and Barrett's Bread, both of which are present employers.  The Tribunal finds that disparity in the potential income in India compared to the actual income in Australia is a disincentive for the applicant to return home.  The applicant did not outline any issues of concern back in India that would prevent him from going home and, taking into account the criteria and the ministerial Direction Number 69, the evidence of the applicant at his oral hearing today and his written response to the section 359(2) request on 26 April 2018, and the submissions he provided on 1 June 2018, the Tribunal is not persuaded that the applicant intends genuinely to stay in Australia temporarily.

15. The applicant obtained enrolment shortly before attending this hearing today and had not been enrolled in a course for 18 months.  The Tribunal is significantly concerned that the applicant is now studying primarily for the purposes of obtaining a further visa, rather than because the study has a distinct value to a future plan outside Australia.  The Tribunal is concerned that the value of continuing study for the applicant is more in the fact that it would prolong and continue his and his wife's residence in Australia.  The Tribunal is unable to foresee with any confidence when, or indeed if, the time will come where the applicant is qualified and motivated to return to India. 

16. Given the above findings, the Tribunal finds that the criteria for the grant of a subclass 500 (Student) visa are not met.  The applicant does not claim to meet the criteria for a subclass 590 (Student Guardian) visa. 

17. For these reasons I have concluded that the decision under review should be affirmed. 

18. It follows, also, that the secondary applicant does not satisfy clause 500.311 of schedule 2 of the regulations. 

19. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) class visa. 

    DECISION

20. The Tribunal affirms the decisions under review.

    P. Maishman
    Member