CAPTAN SINGH (Migration)

[2017] AATA 488

CAPTAN SINGH (Migration) [2017] AATA 488 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr - CAPTAN SINGH
Mrs - Jasmeet Kaur
Master Harniwaz Singh

CASE NUMBER:  1606086

DIBP REFERENCE(S):  BCC2015/3248010

MEMBER:Wendy Banfield

DATE:21 March 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 21 March 2017 at 1:13pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – cl 572.223 – Genuine temporary student – Plans for an automotive business in India – Earlier nominee on a business sponsorship – Diverse course enrolments – Family financial setbacks – No experience in automotive industry

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 1, Schedule 2 cl 572.223(1)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 5 November 2015. The delegate decided to refuse to grant the visas on 12 April 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. According to the Department’s decision attached to the application for review, the applicant had applied for a Certificate III in Motorsport Technology and Certificate IV in Automotive Mechanical Diagnosis however these enrolments were cancelled. The applicant then provided the Department with confirmation of enrolment. The applicant indicated to the Tribunal that he has not been studying since completing a course in September 2015 because he has been waiting for his student visa to be granted.

4. During the time the applicant has held a student visa the evidence from the Department’s decision attached to the application for review and evidence provided by the applicant at the hearing indicates he has been enrolled in and completed the following courses:

   ·     General English Language Course;

   ·     Certificate III in Automotive Mechanical Technology (Light Vehicle)

   ·     Diploma of Management;

   ·     Certificate IV in Spoken and Written English;

   ·     Certificate III in Wall and Floor Tiling;

   ·     Advanced Diploma of Management;

   ·     Certificate III in Automotive Mechanical Technology;

   ·     Certificate IV in Automotive Mechanical Diagnosis;

   ·     Diploma of Automotive Technology.

5. The Department had asked the applicant to provide additional evidence in support of his application including information in relation to the Genuine Temporary Entrant Criteria. The applicant provided evidence of a Medical Booking; a Marriage Certificate; evidence of funds provided by his father; and evidence of course enrolment.

6. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate noted the applicant did not provide a letter outlining his reasons for undertaking his chosen courses or his study intentions in Australia. In addition the applicant did not satisfy the delegate that his study plans in Australia would assist him to gain employment or improve his prospects in his home country in future and therefore the delegate was not satisfied as to his intentions. The Department also took into account that the applicant had been listed as a nominee on a business sponsorship for permanent migration to Australia and as a result, was not satisfied the applicant’ stay is temporary.

7. On 1 May 2016 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. On 21 February 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 16 March 2017. The applicant did not provide any written submissions prior to the hearing.

8. The applicants appeared before the Tribunal on 16 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Ms Jasmeet Kaur.  The applicant was advised that the issue before the Tribunal is whether he meets the requirements of cl.572.223(1)(a). The Tribunal summarised the relevant clause and Direction 53 that sets out the grounds to be considered in determining whether the applicant is a genuine applicant for entry and stay as a student.

9. The applicants were represented in relation to the review by their registered migration agent.

10. During the hearing, the applicant confirmed the date he arrived in Australia and the granting of student visas until he applied for the current visa. He also confirmed to the Tribunal that he had returned to India on two occasions since his arrival, once in January 2012 and again in December 2012. The applicant said he undertook those trips to visit his family and while in India, he met his wife who is a secondary applicant. The applicant and his wife married and their son was born in Australia.

11. The applicant stated his extended family in India are his parents and an older sister who is married. The family run a small farm growing sugar cane, wheat and rice. According to the applicant his father also works for the Indian government. The applicant said he finished high school in 2007 and then undertook English studies before coming to Australia in 2009 when he was aged 20. He declared he came to Australia to study because there are few suitable courses in his chosen field in India and the facilities are poor.

12. The applicant declared his future plans are to open his own automotive business in India and for this reason, he said he needs a broad knowledge of the industry. He said initially he would run a business by himself but would later consider training and employing local people.

13. The Tribunal asked the applicant to comment on him being nominated on a business sponsorship for permanent migration to Australia. The applicant said a friend of a friend in Coffs Harbour wanted an employee for his software business marketing to farms in the area. He said there are farmers from India and as the applicant speaks English as well as Punjabi, the employer thought he would be suitable. However, the applicant declared he is no longer sponsored for permanent residency in Australia as it did not work out. The applicant said he preferred the automotive industry and declared he intended to follow his original plan of starting a business in India.

14. As to work while in Australia, the applicant said he had been employed as a commercial cleaner and had driven a tow truck and a taxi for short periods. The applicant said he is not working currently but his wife is employed in the aged care industry. It was claimed that her wages plus the support of the applicant’s family provides for them financially.  When asked why he was not studying the course he had enrolled in, the applicant said he had been waiting for his student visa to be granted.

15. The Tribunal questioned why the applicant had taken a Certificate III course in Wall and Floor Tiling as well as a Diploma and Advanced Diploma in Management. The applicant stated that prior to taking a course in Tiling, his father had experienced financial setbacks in India and was unable provide him with adequate financial support. For this reason the applicant could not afford to enrol in a further automotive course and had to select something that cost less. He said he did not enjoy the Tiling course and did not pursue it further. In the case of his management studies, the applicant claimed he needed to take those courses because of his plans to set up his own business in India.

16. The Tribunal asked the applicant in the hearing why he was intending to study a Certificate III in Motorsport Technology at one point and how that related to his career plans. The applicant claimed he wanted to have a broad knowledge of the industry. The applicant was unclear about what subjects were studied in that particular course because, he said, he did not start it. He thought it was about vehicle modifications such as fitting turbo chargers. The Tribunal questioned the value of such a course to business plans in India. The applicant said although it may not be important in India now, it is likely to be in future and he though it useful to take such a course while he is still in Australia.

17. The applicant agreed he had not provided a letter to the Department outlining his reasons for his chosen courses of study and his intention in Australia. He told the Tribunal he had provided other documentation as requested.

18. The applicant’s wife Ms Kaur gave evidence that the applicant plans to open a business in India or apply for a job with a large company. She said he needs to finish the course he is enrolled in because it is also related to the automotive industry. Ms Kaur said she had a brother in Australia studying but no other family here. She has her parents in India as well as the applicant’s family. Ms Kaur declared she and the applicant just want to finish their plans in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

21. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

22. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

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

24. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information. The Tribunal finds the applicant does not satisfy the genuine temporary entrant criteria. This finding is based on the factors set out below.

25. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the courses he has undertaken in Australia are regarded as better and have better technology.

26. The Tribunal notes the applicant has not left Australia since 2012 even though his parents are in India. The applicant’s wife and son are here in Australia and on this basis, the Tribunal does not accept that he has closer family ties to India than Australia, which would be indicative of a person who is only a temporary entrant and wishes to return to their country.

27. The Tribunal does accept the applicant has confirmation of enrolment in a Diploma of Automotive Technology but notes he is not attending the course and based on his evidence at the hearing, he has not studied since September 2015.

28. The evidence shows the applicant has been in Australia since 15 June 2009, a period of more than seven years and wants to study until 2018. The Tribunal places weight on the fact the over this period, the applicant has only been enrolled in, and completed, courses at a vocational level and has never actually worked in the automotive industry. Instead, while in Australia, the applicant has worked as a cleaner and driver. The Tribunal does not accept the applicant would be in a position to start a business in that field on his own in his home country, or that he would be able to train and employ others at a later date. The applicant said his family have a farm and his father works for the Indian government. This indicates there is no family background in the automotive industry on which the applicant could build in future.

29. The applicant was questioned during the Tribunal hearing about having been sponsored for permanent residency in Australia in a field that is not related to his studies. The applicant declared the sponsorship did not proceed as the job did not work out with the employer. The Tribunal finds this course of action demonstrates the applicant has an interest in remaining in Australia and is contrary to his claims of wanting to return to India to set up a business.

30. The Tribunal asked the applicant why he had taken a Certificate III in Wall and Floor tiling. He said it was because his father experienced a financial setback and the applicant could not afford to take a course related to the automotive industry and had to find something cheaper. The Tribunal has difficulty accepting that it made any sense to pay for and study a completely unrelated vocational subject matter that has not added anything to his career plans.  

31. Regarding 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, as outlined above, the applicant did apply for a permanent visa while in Australia as a student. The Tribunal notes the applicant has only left Australia twice since 2009 to travel to India, both times in 2012 and amounting to approximately 90 days in total. This is not consistent with close ties to his home country and is more indicative of studying as a pathway to maintain residence in Australia.

32. Based on the applicant’s circumstances, including his immigration and study history, his circumstances in India and Australia and other relevant matters including Direction 53, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student. The Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily.

33. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

34. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    Member of Family Unit – Secondary visa applicants

35. The primary criteria must be satisfied by at least one member of the family unit. Other members of the family unit who are applicants for a visa need satisfy only the secondary criteria.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head’s household and is dependent on the family head.

36. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicants are unable to meet the criteria because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in cl.572.223.

    DECISION

37. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Wendy Banfield
    Member