Bajaj (Migration)

[2018] AATA 4866

Bajaj (Migration) [2018] AATA 4866 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lokesh Bajaj

CASE NUMBER:  1714451

DIBP REFERENCE(S):  BCC2014/2248849

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          13 September 2018 at 12:22 pm (VIC time)

DATE OF WRITTEN RECORD:                1 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Federal Circuit Court remittal –  Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – evidence of finances – genuine student criteria – lack of career plan – use of visa program to maintain residency – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth) Schedule 2 cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 November 2014 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 September 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. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.

4. You applied for a student visa on 8 September 2014.  Your application was refused on 21 November 2014 because the delegate was not satisfied you had provided satisfactory evidence of finances because when a Department officer rang and spoke to your father he advised that the funds provided were the proceeds of the sale of property. 

5. Your father provided an ‘Agreement to Sell’ document, which was not registered which meant it was not a document that legally showed the property had changed hands.  The delegate therefore found the evidence provided did not satisfy the requirements of an acceptable source of funds.  You appealed that decision to be reviewed by this Tribunal.

6. I should say when you lodged this application, which is the fourth student visa application you have lodged since being in Australia since 2010, you were asked to provide evidence that you met the English language requirements, that you met the financial evidence requirements, including evidence of income of your sponsor or sponsors, evidence of the source of funds.  You were asked to provide evidence of Overseas Student Health Cover, evidence of a medical and you were also asked to provide evidence that you were a genuine temporary entrant.

7. At the time when you lodged the application, you were enrolled in a Certificate III in Automotive Electrical Technology, scheduled to run from 18 August 2014 to 18 January 2016 and a Diploma of Business scheduled to run from 22 February 2016 to 7 August 2017.

8. You appealed the decision to refuse your application to this Tribunal and you had a hearing back in August 2015, with a different Member of this Tribunal who affirmed the decision under review, not satisfied with the financial evidence.

9. You appealed that decision to be reviewed by the Federal Circuit Court and on review, it was found that the Member that reviewed that decision had miscalculated the amount of the home loan, which amounted to a jurisdictional error and so it was remitted back here for reconsideration and so we find ourselves here today, where we have invited you for a review of the decision.  So we are reviewing a decision to refuse your application that was made over four years ago.

10. The role of the Tribunal is to take a fresh look at your application and consider whether you satisfy the requirements and are eligible for the grant of a student which as I said, requires satisfaction of a lot of criteria. 

11. One of those requirements is what is known as the Genuine Temporary Entrant criteria which in your case, is clause 572.223(1)(a), which says that to be eligible for a student visa, an applicant must be both a genuine student and a genuine temporary entrant.

12. To be a genuine student, you must be engaged in and applying yourself to a meaningful program of study, progressing academically down an identifiable path.  To be a genuine temporary entrant, your circumstances must indicate a genuine intention to remain in Australia temporarily.

13. When considering if an applicant is a genuine temporary entrant, decision makers must have regard to what was known as Ministerial Direction 53 and the issues in that direction.  They include:

    ·     your circumstances,

    ·     the value of your courses to your future,

    ·     your immigration history,

    ·     your incentive to remain in Australia or return home,

    ·      whether you are using the student visa program to maintain ongoing residency in Australia, and

    ·     any other relevant matter.

14. It is not intended as a checklist, but as a guide for decision makers in considering an applicant’s circumstances as a whole, in determining whether someone satisfies the genuine temporary entrant criteria.

15. As I said, the role of the Tribunal is to take a fresh look of your application, consider your circumstances in total, but with regards to genuine temporary entrant, to consider the issues in Direction 53 and be satisfied that you are a genuine student, who intends to stay in Australia temporarily.

16. The situation is that you first arrived in Australia in February 2010, having done some study of IT courses and worked in your family’s electronics business. You came here to study to be a mechanic, study that would normally take three years.

17. While you say that, “Yes, well then I decided that what I wanted to learn was management, so that I could manage in a workshop”, having been here for well over eight years, you now seek to remain longer, and I say, “Why don’t you do these studies at home?”.  The answer is, well, Australian courses are better recognised.

18. You say, “I am here because what I want to do is study”.  But, you did not study between April 2016 and February 2018, when you started the course that you are currently enrolled in, the Advanced Diploma of Leadership and Management and when I ask why not, you say, “Well I was studying a Diploma of Business, but the college closed down, so I could not get issued with another COE”. 

19. The Tribunal does not accept that as a statement of fact, because you demonstrated you could get another COE, because you got one and started studying in February this year.  But, you spent a very significant period of time not studying, which the Tribunal does not consider to be the behaviour of a genuine student.

20. You are requesting a visa to stay until at least February 2019 which would bring your total time in Australia on temporary visas to more than nine years.  While I accept that some education and career pathways require extensive study, I am not satisfied that you have established that your future goals fall into this category.

21. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim that you are a genuine temporary resident, but rather believes that you are using the student visa program to maintain residence in Australia.

22. You stated you believe your studies would enable you to become a workshop manager and when asked about your future business model or plans, you have no answer other than, “I will need to work in a big workshop and there is not that size in my town, where my Dad would fund me opening a workshop after I get experience, so I will just have to apply for a job in a big city”. 

23. Your answers about your future plans are vague at best and lead the Tribunal to find you do not have a business plan guiding your studies.

24. I do not believe that your studies follow an academic pathway.  If we look at them chronologically, you have studied courses in:

    ·     Automotive,

    ·     Management,

    ·     Management,

    ·     Automotive,

    ·     Automotive,

    ·     Business,

    ·     Automotive, and now

    ·     Leadership and Management.

25. I do not believe that those subjects are an academic pathway at all, and now we come to the fact that what you are now enrolled in, is an Advanced Diploma of Leadership and Management and when we look at the units in your courses, and you agree that the list from your education provider that we have here, accurately reflects those units you are studying.

26. The units in your proposed Advanced Diploma of Leadership and Management course are identical to the units that comprise the Advanced Diploma of Management that you studied at Imperial College, back in 2011/2012.

27. When I ask you about what is going on and why you would enrol in a course where you had already completed all the units, you bumble and provide no satisfactory answer, only finally saying, “I am not sure if I have completed the courses or not”.

28. Mr Bajaj, that that leads me to believe that either you have not done any research into this course that you are studying.  I am flabbergasted that you are now over six months into the course and do not recognise that you have done these units already in a previous course and you have not received credit transfers for the units that you have done. 

29. I find that either, you have done no research, or alternatively, that you have chosen this course not for academic advancement at all, but purely to be able to stay in the country.  Either way, I believe that it is a very strong indication that you are not a genuine student, pursuing academic advancement, but are using the student visa program to maintain residence in Australia.

30. While I acknowledge that you have some family back home which may provide some incentive to return, you certainly appear settled here in Australia, living with your brother-in-law, with your sister and their child who are due to come out and be with them in the next month or two.  

31. It appears you have a long history of work and while you say it is your intention to return home, having been here for over eight years, you now seek to remain longer.  Your words and your actions seem to be different.

32. The Tribunal believes your current circumstances present as a strong incentive to maintain residence in Australia and it does not believe you have provided evidence of any incentive to return, which outweighs the issues we have discussed, or your immigration history.

33. Having considered your circumstances as a whole, including the issues in Direction 53, I am not satisfied you are a genuine student who intends to stay here temporarily. 

34. I therefore find you do not meet clause 572.223(1)(a), which is a prerequisite for the grant of a student visa.

35. Having found you do not meet clause 572.223, the Tribunal does not intend to go on and consider whether or not you satisfy other criteria for the grant of a visa, as you do not meet a criterion that is a prerequisite for the grant of a visa, it is the decision of this Tribunal to affirm the decision under review and this decision was made at 12.22 pm on this, 13 September 2018.

    DECISION

36. The Tribunal affirms the decision under review.

    Tim Connellan
    Member