Bhangu (Migration)

[2018] AATA 5812

Bhangu (Migration) [2018] AATA 5812 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarpreet Singh Bhangu

CASE NUMBER:  1703571

DIBP REFERENCE(S):  CLF2013/230498

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 October 2018 at 11:23 am (VIC time)

DATE OF WRITTEN RECORD:                30 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Court remittal – postponement declined – phone hearing – genuine student – study history – no knowledge of proposed course of study – genuine temporary entrant – incentive to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 17 December 2013 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 10 October 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. MEMBER:  To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations.  You applied for a student visa on 17 September 2013.  Your application was refused on 17 December 2013 because having considered your circumstances the delegate was not satisfied you were a genuine temporary entrant or that you met the genuine temporary entrant criteria and that you were not either a genuine student or a temporary entrant and therefore did not satisfy clause 572.223.

4. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision. 

5. You were invited to a hearing on 7 October 2014 but you did not attend that hearing and made no submissions and consequently on 25 November a Member of the Tribunal made a decision to affirm the decision under review, to affirm the department's primary decision.

6. However, that decision contained some contradictory findings.  You appealed that decision to the Federal Court and on 17 February 2017 the Federal Court found that the decision of the Tribunal had set out contradictory findings on the central issue to be determined and therefore allowed the appeal and ordered that the decision of the Tribunal be set aside and the matter be remitted to this Tribunal for a hearing and determination according to law under a differently constituted Tribunal.  So that meant the court said it is not to be heard by the same Member and so it came here to me.

7. Now, on 28 August 2018, some six weeks ago, we sent you an invitation to come to today's hearing.  On 3 October, five days before the scheduled hearing we sent you an SMS reminder that this hearing was scheduled for today.  And then yesterday we sent you another SMS reminder, which is standard procedure, advising you that the hearing was on today.

8. You rang the Tribunal yesterday and said "I have just got a text reminder of the hearing scheduled.  I have not received a hearing invitation.  I do not know anything about.  Can it be postponed?"  Now, I should go back a fraction before that because what happened in November 2017 last year somebody from the Tribunal rang you to confirm your details and you rang back and said "I do not live at Winifred Street, St Albans anymore I am now at Manfred Avenue, St Albans.  My mobile number is still the same".  Back on 23 August this year an officer of the Tribunal called you to confirm how you wanted us to communicate with you.  Your phone rang out and the Tribunal officer left a message on your voicemail.

9. On that same day 23 August 2018 we sent you an email, which said:  I am writing in relation to your application for review.  Please contact us on the number listed below as a matter of urgency.  We wish to discuss with you your preferred method to receive correspondence.

10. But you did not respond.  So you then ring yesterday and say "Can I have it postponed?  I am not feeling well."  You were told to put that request in writing and it would be sent to the Member for consideration.  The staff member also advised you that if you had not heard back from the Tribunal you have to assume the hearing will proceed and the member of staff then spoke to me.

11. I said "No, I am not prepared to grant a postponement in those circumstances".  If you were unfit for a hearing you were required to provide a medical certificate that detailed the fact that your illness was such that you were unable to attend a hearing in person or via phone.  It was passed onto you and you said "Yes, well, I will do a phone hearing".

12. At 9.30 last night you provided an email which said: “Dear sir/madam, it is Amarpreet Singh Bhangu here, I cannot come tomorrow for my hearing because of sickness.  I am sending you a medical certificate”.

13. The medical certificate stated that you had attended a medical and dental centre yesterday and would be unfit to attend work from yesterday until 12 October, this Friday, due to a personal illness.

14. Now, because that did not say you were unable to attend a hearing we spoke to you this morning and you agreed to conduct this hearing by telephone, which is what we have done.

15. To satisfy clause 572.223 an applicant must be both a genuine student and a genuine temporary entrant.  As I said, when you appealed to this Tribunal you provided a copy of that primary decision.

16. To be a genuine student you have got to 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.

17. Now, as was explained in the primary decision, when considering if an applicant is a genuine temporary entrant it is necessary to have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. 

    They were detailed in the primary decision and they include

    ·your circumstances,

    ·the value of your courses to your future,

    ·your immigration history,

    ·your incentive to stay in Australia or return home,

    ·if you are using the student visa program to maintain ongoing residence in Australia, and

    ·any other relevant matter.

18. It is not intended as a checklist but it is a guide to decision makers in weighing up an applicant's circumstances as a whole in reaching a finding about whether an applicant satisfies the genuine temporary entrant criteria.

19. The role of the Tribunal is to take a fresh look at your application, consider your circumstances, the issues in Direction 53, and be satisfied you are a genuine student who intends to stay in Australia temporarily.

20. You told the Tribunal you had read and understood the primary decision, which I read from in some detail and we discussed in some detail.  That decision and its detailed references to the genuine temporary entrant issues put you on notice of the issues in your case.

21. In regard to your circumstances you came to Australia on 25 July 2008 having finished high school and you came here to study to be a chef, training that you say would normally take four years.  In the 10 years that you have been here you have completed basically the chef training and a Diploma of Management. 

22. The courses you have completed collectively ran for less than three years.  The Tribunal certainly does not consider this to be the study pattern or progress of a genuine student.

23. You have done no study since you finished the Diploma of Management in May 2013.  And you say, well, “No, well, I did not study because I did not have any money because I had to spend all the money that I had on lawyers”.  When questioned about that you were referring to a migration agent but given that you did not attend the hearing I am not sure how much you could have spent.

24. I asked what you have been doing in terms of working and you say, well, I worked in a restaurant or I worked my way up from a dishwasher to a cook.  And I said, "Interesting, what was the name of the restaurant?"  And you say "I cannot remember".  As I said to you, Mr Bhangu, I do not believe that someone works in a restaurant where they work their way up from dishwasher to cook and cannot remember the name of the restaurant.  I believe that your answers to this, and other questions indicates that you are not a reliable witness.

25. When I ask you why you do not do your intended studies at home you basically say, "Well, I like to study here" was your answer.  Well, while you say you like to study here the fact is you have been here for the last five years with full study rights and have done no study, so I do not accept that as a genuine response.

26. Now, referring to the primary decision it talks about the fact that that you had study gaps and, as we discussed and I read to you earlier, you were asked to provide evidence that you met the genuine temporary entrant criteria and to comment on an apparent gap in study from 26 May 2013 to 18 August 2013.  You responded to that saying that what happened was you finished one of your courses two months early and the college put down that you had finished the course two months early and that therefore created a longer than normal study gap until your next course.  I believe that is an acceptable answer.

27. They then sent you another request in November 2013 asking you for explanation of study gaps between 19 April 2009 and 28 September 2009.  So that is a study gap of five months.  And 12 October 2009 to 17 May 2010.

28. Now, you provided a response that I do not believe made sense.  You say:  “Again in my defence I just want to say that I was a genuine continuing student during those two periods.  In the first mentioned gap I was studying at Ozford College.  I was studying a Diploma of Hospitality.  I provided with this statement the academic transcripts.  If you see the term 2 hospitality section, which is February 2009 to July 2009 I was studying a course but due to the issues with the college management I only passed one unit and the assessor failed me in four units.  I am not sure if the Immigration Department has similar student cases but 80 per cent of the students were getting failed and assignments.  Due to the greediness of the college management each failed subject was costing the student an extra $350.  College management appointed a teacher whose role was only to fail the students.  This was the main reason that I changed the college and completed my studies at another college”.

29. That does not respond to the period even if we accepted July to 28 September: “In the second mentioned gap I was half studying at Ozford and half at Victoria College of Culinary Arts and Technology”.

30. I do not believe that somebody who believes that they are being ripped off would keep studying at one place and at the same time go and study at another.  The delegate did not accept that explanation and neither do I.  I do not believe that you have a satisfactory explanation for your study gaps.

31. Student visas are granted with the expectation that visa holders will remain enrolled and studying and failure to do so creates a breach of condition 8202, which requires you to remain enrolled and studying.

32. As stated, the Tribunal does not believe your study history is that of a genuine student and does not believe your response provides a satisfactory explanation for your behaviour, which the Tribunal finds is not that of a genuine student.

33. I put to you under section 359AA your PRISMS records, which are the records of your enrolments, which show that you've been enrolled in one, two, three, four, five, six, seven, eight, nine, 10, 11 courses. Nine of those enrolments have been cancelled and the last of which was cancelled for unsatisfactory course progress.

34. That unsatisfactory course progress cancellation was the cancellation of a Certificate IV in Business at Ashton College and it was cancelled because you had failed to maintain satisfactory progress and had not paid any fees.  They had sent you warning letters and intention to report letters but you did not respond.

35. When I put that to you and suggested that subject to what you might say it might lead me to believe you were not a genuine student you response was “basically I have got nothing to say”.

36. So, as I have said, I do not believe you are a genuine student.  Your response does not provide a satisfactory explanation, and as already stated I do not believe your behaviour is that of a genuine student.

37. You are requesting to stay you say to do a four year Bachelor of Hospitality.  And I say what is it that you want to do?  And you repeat a four year Bachelor of hospitality.  When I ask you where?  you say: “at university, RMIT or La Trobe”.  The difficulty is I say to you is that neither of those education institutions offer a Bachelor of Hospitality, which indicates in my mind that you have done absolutely no research into what studies you say you want to do.

38. You are requesting a stay until at least 2022 which if granted which would bring your total time to Australia on temporary visas to more than 14 years.  And while I accept that there are some educational or career pathways that require extensive study I am not satisfied you have established your future goals fall into this category.

39. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident but rather believes you are seeking to use the student visa program to remain resident in Australia.

40. While you have not provided any great detail you have provided evidence that you have maintained employment in Australia for some considerable time.  And when I ask you what you plan to do if you get this visa you say, well, I will do this Bachelor and then I will go home and open a restaurant.

41. Now, when I say how will you fund the opening of a restaurant?  You say my father will assist me to begin with.  When I say, well, that seems a bit extraordinary given that what you were enrolled in when you applied for this visa was a 6-month Certificate III in Information Technology the fees for which were only $2,000.  You say you did not study it because you could not afford it.  So your father was not prepared to put up $2,000 for you to study, but presumably he is prepared to spend tens of thousands of dollars for you to open a restaurant.  I have difficulty in believing that again when I put that to you today, you say “I don’t know what to say”

42. I do not believe that you have a business plan that is guiding your studies at all.  You say you came here to qualify as a chef.  You are qualified as a chef.  You say you want to go back and open a restaurant.  I do not believe that a Bachelor of Business will provide you with any greater or relevant skills than you have gained in previous studies or experience.  You say Australian qualifications are highly regarded overseas.  They may well be, but if you are going to go home and open your own business it does not really matter how other people regard your studies.

43. And while I acknowledge that you may have family back home, which may provide some incentive to return, you certainly appear settled in Australia.  You live here with a long-time girlfriend in a home that you say she purchased this year for half a million dollars.  And so I say, well, what will happen to your relationship when your study ends and your temporary visa?  And you answer that you had not really thought it through.  Well, I have got to say that having a girlfriend here that lives in a home that she owns and presumably is paying off is a pretty significant incentive to remain in Australia.

44. So while you say it is your intention to return home having been here for 10 years you now seek to remain longer.  Your words and your actions seem to be different.  The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return, which outweighs the issues we have discussed, and your immigration history.

45. Mr Bhangu, 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 temporarily in Australia.  I therefore find you do not meet clause 572.223 and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

46. The Tribunal affirms the decision under review.

    Tim Connellan
    Member