BHALLA (Migration)

[2018] AATA 2986

BHALLA (Migration) [2018] AATA 2986 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PRITPAL SINGH BHALLA

CASE NUMBER:  1710142

HOME AFFAIRS REFERENCE:                BCC2017/790536

MEMBER:Lilly Mojsin

DATE:4 July  2018

PLACE OF DECISION:  Sydney

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

Statement made on 4 July 2018 at 2:32pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Significant period spent not studying – Confirmation of enrolment obtained the morning of the Tribunal hearing – Limited value of studies to career plans – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 21 April 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 28 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 review refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not provided sufficient information to satisfy the financial requirements for the visa.

4. The applicant appealed that decision to this Tribunal attaching a copy of his decision record to the application.

5. The applicant appeared before the Tribunal on 13 June 2018 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. The delegate of the Department refuse the visa as the applicant had not provided any information or documentation evidencing his financial capacity.

8. At the Tribunal hearing the applicant explained that he had medical problems and that his mother became depressed because of his health condition. His mother passed away last year.

9. The applicant last studied in March 2017. He went to India in April 2017 and returned. He also returned to India in January 2018 for three months. He provided a Confirmation of Enrolment which he showed to the Tribunal on his mobile phone that he had obtained today. He opined that he wishes to complete his studies in order to go back and look after his father.

10. The applicant said that he arrived in Australia in 2012 in order to study a Bachelor of Mechanical Engineering. He then transferred to a Bachelor of Information and Business Systems in about 2013. He had completed 12 subjects and wishes to complete the course.

11. His Confirmation of Enrolment was to study an Advanced Diploma of Leadership and Management, stating it is similar to his previous course. The Tribunal put to him that as he had stated previously that he wished to complete his previous course the Tribunal was of the view that he had obtained a Confirmation of Enrolment this morning in order to meet the requirements of obtaining a student visa.

12. Asked where he was going to study Advanced Diploma of Leadership and Management he said it was at the Australian Institute of Profession. He has paid $2 500 today.  He wanted to study this course as he has studied a number of similar subjects in the Bachelors course.

13. The applicant said that his brother has two cafes here in Australia and is supporting him financially. He has been in Australia for 20 years.

14. The applicant advised that he applied for a 457 visa while he was studying as his brother has two restaurants in Australia.

15. The applicant provided to the Tribunal

    ·PAYG summary for the applicant

    ·Westpac bank statement for Coolabah Tree Cafe

    ·Mother’s death certificate

    ·Australian Citizenship Certificate for the applicant’s brother

    ·ANZ bank statement for Jimmy Brar Pty Ltd for $35 355.31 and $9573.62

16. It was put to the applicant that financial evidence required to meet the criteria for the Visa had to be provided by himself, a parent or a spouse.

17. The applicant is single, he has no children. The applicant’s brother is an Australian citizen, the applicant lived with his brother until the end of 2016. His father, who is a doctor, remains in India. He is still practising and does not want to come to Australia. The applicant does not have any military service commitments in India. The applicant works in Australia with his brother. Asked about his career path, he said he wants to get a diploma or degree to go back to India and look after his dad and obtain a job. Asked what sort of job he wanted he said there are lots of opportunities over there, even teaching. His dream job is a train driver. He obtained a mechanical engineering diploma in India, he practised with his dad and also has a diploma of export and import. He has finished an English course in Australia, one in Melbourne one in Sydney. He confirmed he did not have any specific career path he wished to follow but wants to finish his bachelor’s degree in information and business Systems. He is going to now study leadership and once he has a diploma he can return to the degree and get some credits from the diploma course.

18. Asked when he anticipated returning to India he said that it would be next year to look after his father. He believes he can finish all his studies next year. He only needs to do 12 subjects out of 24.

19. The applicant has returned to India for a five times since his arrival in Australia. He has not breached any conditions of his visa. Asked why he did not study the advanced diploma of leadership and management earlier he said that that was a good question and it was the fault of his agent who was misguiding him.

20. It was put to the applicant that he wanted to stay in Australia and work in his brothers business. He said that he did not want to go back to India without any qualifications.

    REASONS AND FINDINGS

21. 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 the applicant. The delegate was not satisfied that the applicant met cl.500.214. Whilst the applicant has provided a PAYG statement for the 2016 to 2017 tax year the Tribunal is concerned as to whether or not the applicant is a genuine student.

22. 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.

23. 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, ………..; 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.

24. The applicant is 30 years of age. He is single and does not have any children. His father, a doctor, lives in India. The applicant has completed two diplomas in India, one in mechanical engineering and the other in import and export. He has worked assisting his father in the medical field. In Australia the applicant has a brother who owns two restaurants where the applicant is employed. The applicant does not have any military service commitments in India. The applicant has returned to India on a number of occasions and returned to India when his mother died. The applicant claims that he had medical problems in Australia and this was the reason for being unable to complete his studies in information technology.

25. The Tribunal places greater weight on the following:

    ·the applicant has not been studying since March/April 2017 and only obtained a Confirmation of Enrolment on the morning of the Tribunal hearing. Asked why he did not apply earlier to study he stated that his agent misguided him. The Tribunal does not accept his explanation, the Tribunal is of the view that if he wanted to study a diploma of leadership and management he would have done so prior to the morning of the Tribunal hearing

    ·the applicant initially stated that he wanted to finish his bachelors course in business information and then produced a  Confirmation of Enrolment to study a diploma of leadership and management. His explanation for studying a diploma of leadership and management was to obtain credits that could be used to finish the Bachelors course. The Tribunal is of the view that the applicant enrolled in a diploma of leadership and management in order to obtain the visa sort

    ·When asked about his future career the applicant was unable to explain what career he wished to pursue in the future. He stated there are lots of opportunities in India, even teaching. His dream job is a train driver.

    ·The applicant’s brother is an Australian citizen who has two restaurants, the applicant works for his brother.

26. In light of the applicant’s employment in his brother’s business and the applicant’s inability to explain the value of studying a diploma of leadership and management to his future and the applicant not being enrolled in any course of study for 12 months and only obtaining a Confirmation of Enrolment on the morning of the Tribunal hearing the Tribunal is of the view that the applicant only obtained a Confirmation of Enrolment in order to meet the requirements of a student visa.

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

28. 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

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

    Lilly Mojsin
    Member