BEEHUSPOTEEA (Migration)

[2019] AATA 3795

BEEHUSPOTEEA (Migration) [2019] AATA 3795 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAYRAMSING BEEHUSPOTEEA

CASE NUMBER:  1711274

HOME AFFAIRS REFERENCE(S):          BCC2017/771612

MEMBER:David Barker

DATE:7 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 07 February 2019 at 11:43am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – academic progress – lack of ties to home country – use of visa to maintain residence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 and Border Protection on 11 May 2017 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 for the visa on 27 February 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicant initially appeared before the Tribunal on 25 October 2018 but due to difficulties with the availability of an interpreter the hearing was adjourned until 12 December 2018, on which date the applicant appeared again before the Tribunal at 9:30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mauritian Creole and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The applicant is a national of Mauritius and is 56 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant first arrived in Australia in September 2008, as the holder of a Subclass 572 Student visa and at the time of his application for the Subclass 500 Student visa in February 2017, he proposed to undertake Diploma of Marketing which commenced In October 2016 and is due for completion on in October 2017 and an Advanced Diploma of Marketing and Communication which is due to commence in October /2017 and is due for completion in May 2019.

9. The delegate noted that an examination of the applicant’s study history in the Provider Registration and International Student Management System (PRISMS) indicates that he has been enrolled to undertake the following courses:

   ·     English for General Purposes (4 to 48 weeks)

   ·     Diploma of Business

   ·     Diploma of Tourism

   ·     Certificate II in Financial Services

   ·     Certificate III in Accounts Administration

   ·     Certificate IV in Accounting

   ·     Diploma of Accounting

   ·     Advanced Diploma of Accounting

   ·     Certificate IV in Marketing

10. The applicant provided a written statement addressing genuine temporary entrant requirements to the Department at the time of his application for the Subclass 500 Student visa in which he stated that he decided to further his study in Australia to pursue his dream of running his own travel and tourism business in Mauritius.  The applicant stated that he believes that marketing and communication skills are vital for any business owner as it enables a person to generate revenue and profit from their business.  The applicant stated that after finishing the Advanced Diploma of Marketing and Communication, he will return to Mauritius to start his own travel and tourism business, which is now a booming industry in Mauritius and that he strongly believes that the skills and knowledge that he will gain from studying in Australia will help him significantly with his future business plans. 

11. In finding the applicant did not meet the genuine temporary entrant requirements, they expressed concern as to the lack of overall academic progress in the applicant’s studies in Australia since 2008 and also about his very limited time offshore from Australia since 2008. The delegate found that the evidence did not show that the applicant had maintained a strong connection to his home country and that given the economic circumstances in his home country relative to his potential economic circumstances in Australia the delegate was not satisfied that the applicant had a significant incentive to return to Mauritius.The delegate was not satisfied that the applicant had demonstrated that further study would significantly improve his future employment or business prospects in his home country.

12. In response to an invitation to the applicant from the Tribunal to provide documents or arguments he wished to rely on in his review, the applicant provided documentary evidence including, but not limited to, evidence of his current and past academic studies and two written statements.

13. A statement dated 19 October 2018, states amongst other things:

    I was granted a student (class TU) (subclass 572) visa offshore and I arrived in Australia on 29/09/2008.

    I have completed the following courses in Australia:

    ·Diploma of Business which commenced on 8/12/2008, and successfully completed it on 5/12/2010.

    ·Diploma of Tourism which commenced on 21/02/2011, and successfully completed it on 23/02/2013.

    ·Certificate II in Financial Services which commenced on 8/04/2013, and successfully completed it on 21/09/2013.

    ·Certificate Ill in Accounts Administration which commenced on 23/09/2013, and successfully completed it on 17/05/2014.

    ·Certificate IV in Accounting which commenced on 19/05/2014, and successfully completed it on 4/04/2015.

    ·Diploma of Accounting which commenced on 8/4/ 2015, and successfully completed it on 20/02/2016

    ·Diploma of Marketing and Communication which commenced on 4/4/2016, and successfully completed it on 28/10/2017

    ·Advanced Diploma of Marketing and Communication which commenced on 30/10/2017, and is due for completion on 18/5/2019

    I have attached all the Certificates, Transcripts and Completion letter of my past studies below for the reference.

    ……

    Direction 69 application under s65 of the Migration Act 1958
    When exercising powers in relation to assessing an applicant's temporary entrant criterion for a student visa, the Delegate must give consideration to certain factors such as the applicant's circumstances, the applicant's immigration history and any relevant matter such as incentive to return home.

    Please note that my visa was refused on the 11th May 2017, however I kept pursuing my goals and pursued my desire to complete the Diploma of Marketing and Communication, successfully completing it on 28/10/2017and enrolled in Advanced Diploma of Marketing and Communication, obtaining a COE which is current showing my course completion on 18/05/2019. My visa refusal did not deter me from finishing my final qualification in Marketing as expressed by me in my Genuine Temporary Entrant statement sent to the Department on the 27th February 2017, when I applied for my student visa extension, which was unfortunately refused on the 11th May 2017.

    It is worth mentioning here, that I demonstrated my commitment toward my studies and did not stop studying or lost motivation, which could have led to poor academic results, but on the contrary, I completed my Diploma in Marketing and Communication and currently pursuing leading to Advanced Diploma of Marketing and Communication in spite of my visa refusal.
    I don't have any gaps in my education and never stopped studying, as I have a clear goal set in my mind to complete the Advanced Diploma of Marketing and Communication and return home to Mauritius and start my own business in the Travel Industry as indicated by me previously.

    "Future of Tourism in Mauritius is very promising" as per my research. The direct contribution of Travel & Tourism to GDP in 2017 in Mauritius was MUR34.2bn (7.4% of GDP). This is forecast to rise by 1.6% to MUR34.7bn in 2018. This primarily reflects the economic activity generated by industries such as hotels, travel agents, airlines and other passenger transportation. Direct contribution of Travel & Tourism to GDP is expected to grow by 4.6% pa to MUR54.3bn (8.1% of GDP) by 2028.

    I invested a lot of time and money in obtaining my qualifications in Australia. I would like to point out that I have never breached any of my visa condition by not studying or performing poorly in my studies and does not have any adverse information with regards to my immigration history.

    My mother and father living in Mauritius. Furthermore, I have 2 siblings, a brother and a sister. I would be inheriting my parent's wealth and estate. Along with family and financial ties I am very passionate to open my own travel and tourism business, which is thriving in Mauritius.
    I plead with the Honorary Member to allow me to complete my final qualification which I am currently studying as I feel that I will be able to apply my acquired skills in Marketing to my tourism business, which I intend to start on returning to Mauritius in 2019. I understand the role of Marketing, Advertising and social media in today's world to make any business successful and tourism is no exception. My Genuine Temporary Entrant Statement is attached below under Appendix 12

    Points to be considered in this matter:
    I completed all my courses which I applied in, which reflects the genuine intension of pursuing my education. I cleared all my exams and managed not to fail in any of my subject shows the sincerity towards my goal. I never breached any of the visa obligation and conditions which clearly shows that my objective of coming to Australia is purely to study for my future.
    I choose my streams of education i.e. Tourism with Business, Management and communication that clearly indicates that combination of these subjects will help me in opening my own Tourism Business in my Home Country. I see myself and my family's future bright in my home country after starting my business with these qualifications of international level because economy of Mauritius is flourishing majorly due to Tourism business.

    SUMMATION
    I complied all my visa conditions substantially and was not demotivated on my visa refusal after reaching so close to my goal and completed my course.
    I thank you for allowing me to express my views and also allowing me to represent myself in the above matter.

14. A statement dated 4 December 2018, states amongst other things:

    I Mr. Jayramsing Beehuspoteea writing in response to resumption of adjourned hearing notice. L am answering to the further concern raised in the last interview conducted in the matter of merits review lodged with the Administrative Appeals Tribunal, MR Division for refusal of my Student (Temporary) (Class TU) - (Subclass 500) Visa on 11th May 2017.
    Note: My intension Is to go back to my home country after completion of my remaining course. I only have 5 months left in completion of my current course. L am Intending to start a business back in Mauritius after finishing this course.

    Following are the clarifications in regards to further concerns raised during last interview which was adjourned,

    1.       What are the reasons of few cancellations of your COE’s
    Few of my COEs were cancelled due to internal issues of college which are mentioned in the comment section of COB History Record provided by college such as:

    ·They reinstated my COB due to change of CRICOS.

    ·They reinstated due to cancellation of my COB by mistake.

    ·COB was cancelled as University did not updated the COB.

    Due to these few reasons my COB were cancelled. In-fact on my completion of one of the courses, College has complimented me by saying that “although there was a gap of 4 months between COB cancellation and re-instatement, the student did maintain satisfactory attendance and academic progress". I have completed all the courses which had cancelled CoE's due to college's internal issues (mistake). I have already submitted my COE History records to the AAT as evidence.

    2.       There is Economical disparity between Australia and Mauritius So what is your main purpose of staying in Australia'

    My reason for coming to Australia is not to work. I have purely come to study for my bright future of having my own business in Mauritius. To demonstrate this, ! have already submitted my Tax Return details to MT. In that my salary is approximately around 19,000 AUD per year for the last three financial years and in Australia the salary package of part time (20 Hrs) job is around 25,000 AUD approximately. lam still doing (part time) 20 hrs or less job per week with my studies as my main focus is my study. This clearly shows my genuine intension of staying in Australia is for study. (Please see attached last 3 years Notice of Tax Assessment)

    3.       How many times you travelled hack to my home country while studying in Australia?

    I have travelled twice to my home country Mauritius. For the third time when I was planning for my visit to my home country, I got my visa refused. Therefore, I thought that as I have to go through further formalities in concern to my refusal, I dropped the plan to visit my home country and decided to stay to clarify my visa refusal issue.

    I complied all my visa conditions substantially and I have genuine intension to finish my remaining course and go back to my home country. I thank you for allowing me to express my views and also allowing me to represent myself in the above matter.

15. The Tribunal gave the applicant time following the hearing to provide further financial information to support his claims he does not have a financial incentive for maintaining his residency in Australia and on 21 December 2018 the Tribunal received bank statements and other financial records from the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

17. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

18. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

19. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

20. With regard to whether the applicant has sound reasons for not undertaking the study in his home country or region if a similar course is already available there.  The applicant has provided no evidence of research or consultations that he undertook to ascertain if a suitable marketing and communication course was available for him to undertake in Mauritius.

21. In relation to the length of time he has now undertaken courses in Australia, rather than his home country and other aspects of his study history, the applicant contended he has successfully completed all of the courses that he has undertaken in Australia and that they have all been relevant to his future business plans in Mauritius.

22. I have reviewed the applicant’s PRISMS student records, a copy of which were provided to the applicant for his consideration.  These records support his claims as to his successful completion of courses, with the exception of an Advanced Diploma of Accounting in 2016.  However, it is evidence that his failure to undertake this latter course did not create a significant gap in his studies, as he shortly thereafter commenced the Certificate IV in Marketing course.

23. It is apparent that the applicant has studied on a consistent basis whilst he has been in Australia since 2008 and completed a number of courses at the vocational sector level.  I have placed some positive weight on this factor.  I am not however satisfied the applicant has demonstrated that some or all of the courses he has studied in Australia were not available in his home country.  I am also not satisfied that the applicant’s overall study history demonstrates the level of academic progression that would be indicative of a genuine student who has now spent 10 years in Australia on temporary visas.

24. The applicant contends that his study choices reflect his accumulation of skills relevant to his goal of establishing a tourism business in his home country. In support of this claim he highlights the strength of the tourism industry in Mauritius and the Tribunal accepts this evidence.  I am not however satisfied that the applicant has demonstrated he has developed any credible plans for opening a tourism business in Mauritius.  He gave oral evidence that he has a friend, who he described as his business partner in Mauritius, before explaining that this person works in a travel agency and would be able to give him advice about setting up his own business. I acknowledge that the courses the applicant has undertaken over the past 10 years in Australia encompass knowledge and skills relevant to a tourism business.  I am however not persuaded the applicant has a credible plan to open such a business in his home country.

25. In forming this latter view, I have noted the lack of any apparent connection between the applicant’s employment over the past 10 years in Australia and either his proposed tourism venture in his home country, or the courses he has studied whilst on temporary visas in Australia.  The applicant has worked as a cleaner and a carpenter whilst he has been in Australia and I am not persuaded there is any clear relevance between these jobs and his stated interest in tourism, or the business, accounting and marketing courses he has studied since 2008.

1. With regard to the extent of the applicant’s personal ties to their home country and whether they would serve as a significant incentive to return to their home country.  The applicant gave oral evidence that he lives alone in granny flat rental accommodation in Campsie, NSW.  He said he has no relatives in Australia and that his wife, three adult children and other relatives reside in Mauritius. I accept this evidence and that the applicant has stronger familial connections to his home country than he has in Australia.

2. With respect to the delegate’s concern about the applicant's limited time offshore since his arrival in Australia, the applicant gave oral evidence that his wife loves with their adult children, who all have employment in Mauritius.  He said his wife does not work, but that he sends her money sometimes.  He said he has sent her around $2,000 in the past six months and I note that the financial records he provided following the hearing support this claim. In the written statement he provided the Tribunal, dated 4 December 2018, the applicant states he has returned to Mauritius twice since 2008 and planned to return on a third occasion but that this intended trip was cancelled after his application for the Subclass 500 visa was refused.  I accept the applicant has made two trips to his home country since 2008 and that any further trips in the period since the delegate's decision in May 2017 were impacted by the refusal of his visa application.  I do however had concern that the applicant's 58 days offshore, compared to the 1,769 days onshore in Australia, at the time of the delegate’s decision, is not indicative of a person maintaining a strong connection to his home country, notwithstanding the presence of his wife and adult children in that country.

3. With regard to the economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. The applicant claims that he has worked on a part time basis for much of the time he has been in Australia since 2008.  He said that he initially worked as a cleaner in a restaurant and in more recent years as a carpenter, earning $50 per hour for between 15 and 20 hours per week.  This would provide the applicant with a weekly income of between $750 and $1,000 per week, which he said is paid into one of his CBA bank accounts.  Whilst having no reason to doubt the applicant’s oral evidence in relation to his earnings in the period he has worked as a carpenter, it is not fully supported by a review of transactions on the bank records he provided following the hearing, which do not show funds identified as wages been deposited to the extent claimed by the applicant. The applicant has highlighted transactions on the CBA account statements which he claims reflect employment earnings over the June 2018 to December 2018 period, which amount to $10,100. 

4. The Tribunal estimates the claimed employment earnings of between 750 and $1,000 per week would provide an annualised income, allowing for four weeks leave a year, of between $36,000 and $48,000. The Tribunal notes that this income estimate, whilst based on the applicant’s oral evidence during the hearing, is not consistent with his reported annual income to the Australian Taxation Office (ATO), as reported in the ATO Notice of Assessments he provided with his review application, which state he had a taxable income in the 2016 income year amounting to $19,841, in 2017 - $19,519 and 2018 - $18,506.

5. The applicant said he also gambles regularly on poker machines and that transactions on his bank accounts reflect both wins and losses from his gambling. A review of the financial records provided by the review applicant show the applicant made cash deposits into a CBA account amounting to $2,200 in June 2018, $2,850 in July 2018, $3,560 in August 2018, $2,300 in September 2018, $3,250 in October 2018, $800 in November 2018 and $800 in December 2018, for a cumulative total of $15,760.  These cash deposits were consistently made through an ATM machine in Campsie, NSW.  There are also frequent withdrawals of $50 or $100 from an ATM machine at Campsie Hotel.

6. There is an indication of regular rent and mobile phone plan payments from the applicant’s CBA account, but no indication of other transactions which would reflect payment of either education or regular living expenses. The applicant has also provided transaction records on further amounts credited to his account amounting to $1000 in January 2018 and $1,800 in may 2018, however it is not apparent if these transactions reflect employment earnings, or funds from some other source. 

7. When the available evidence is considered, I have concern as to some aspects of the applicant’s financial circumstances in Australia.  There appear to be inconsistencies with regard to whether all the earnings he claims to receive from employment as a carpenter are paid by direct deposit into the CBA accounts he has provided records of.  It is not apparent how regular living costs, with the exception of rent and mobile phone, are met and when considered with the extent of cash transactions apparent in the applicant’s financial records, this gives rise to the concern that the applicant has not been fully transparent about his financial circumstances in Australia.  Whilst acknowledging the applicant’s claims regarding his gambling before appear supported by the extent of transactions from an ATM machine at Campsie hotel, I am not satisfied this fully accounts for the extent of his cash income, or from what sources he is meeting regular living expenses.

8. A review of country information indicates the average monthly earnings in 2019 MUR 28,000[1] (Australian equivalent $1,150), which provides an annualised average income allowing for two weeks leave a year, of around $13,225.  This is a considerably lower income then the applicant is earning in Australia, particularly if his claimed income from gambling is taken into account. 

   [1] >

   When the overall evidence in relation to the applicant’s financial circumstances are taken into account, I am satisfied that they provide him with an incentive for him not to return to his home country.

9. With regard to military service commitments that would present as a significant incentive for the applicant not to return to their home country, I am satisfied the applicant has no such commitments, nor concerns about civil or political unrest that may provide him with a reason to not wish to return to Mauritius.

10. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled and successfully completing an Advanced Diploma of Marketing and Communication which finishes in May 2019, he has stronger family ties in Mauritius than Australia, that he has successfully completed the majority of the courses they have enrolled in while on the student visas and all the other matters he has raised.  However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

11. The Tribunal is therefore not satisfied that the applicant 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.

12. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

13. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

14. 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. Accordingly, the decision under review must be affirmed.

    DECISION

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

    David Barker
    Member