Chopra (Migration)

[2020] AATA 2468

Chopra (Migration) [2020] AATA 2468 (24 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Devan Chopra

CASE NUMBER:  1914225

DIBP REFERENCE(S):  BCC2019/1343069

MEMBER:  Margaret Forrest

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 February 2020 at 11:15 am (QLD time)

DATE OF WRITTEN RECORD:                9 March 2020

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant criterion – failed to explain how his current set of courses will assist him to achieve future plans – family in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 May 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 February 2020, 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. The applicant applied for a visa on 16 March 2019. 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.

4. 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 the delegate was not satisfied that the applicant was a genuine temporary entrant.

5. The applicant appeared before the Tribunal on 24 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was assisted in relation to the review by their registered migration agent who attended the Tribunal hearing and made submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 temporary entrant.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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:

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(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?

1. 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, which is attached to this decision, 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.

2. 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.

3. The applicant told the Tribunal that he arrived in Australia on 26 December 2018. The applicant arrived in Australia on a Visitor visa that was valid from December 2018 to March

   2019. The applicant submitted his current application for a Student visa in March 2019.

4. When the applicant submitted his current Student visa application, he was proposing to study the following courses:

a.     a Certificate III in Light Vehicle Mechanical Technology;

b.     a Certificate IV in Automotive Mechanical Diagnosis; and

c.     a Diploma of Automotive Technology.

1. The applicant told the Tribunal that he is currently studying the Certificate III in Light Vehicle Mechanical Technology. The applicant submitted a letter to the Tribunal from Enhanced College of Technology dated 12/02/2020. This letter indicates that the applicant is currently enrolled in a Certificate III in Light Vehicle Mechanical Technology and his attendance and course progress in this course has been satisfactory. The Tribunal accepts that the applicant is currently enrolled in this set of three courses and is currently studying the Certificate III.

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1. The applicant also told the Tribunal that he applied for a Student visa when he was in India in February 2016. The applicant said that this visa was refused because the delegate of the minister was not satisfied that the applicant was a genuine student. The applicant told the Tribunal that when he submitted this visa application he was proposing to study business studies.

2. The Tribunal asked the applicant about the circumstances in his home country. The Tribunal asked the applicant why he was unable to undertake his current set of courses in India. The applicant said that in Australia there are lots of options in relation to automobiles; he said that in India there is a focus on theoretical studies in relation to automobiles, whereas in Australia there is a focus on both theory and practice.

3. The applicant said that in India the trainers have a lack of knowledge and there was no focus on practical training and they could not explain things. The applicant said that in Australia he is able to observe trainers and they teach theoretical knowledge before, also following it up with practical training.

4. The Tribunal asked the applicant about his personal ties to India. The applicant told the Tribunal that his parents and sister continue to reside in India. The applicant said that he has no property in India in his name and any property is in his father’s name. The applicant said that he expects to inherit this property from his father. The applicant told the Tribunal that he presently has no job to go back to in India. The applicant also told the Tribunal that his community ties in India consist of his involvement with a Hindu temple, where he used to visit every Sunday to undertake kitchen duties. The applicant said that he contacts his family in India on a daily basis through video calls. The applicant also said that it is his duty to return to India to look after his parents in their old age, and that his parents have no option to settle in Australia. Taking into account this evidence, on balance, the Tribunal considers that the applicant’s family ties, of themselves, do not constitute a significant incentive for the applicant to return to India. The Tribunal has placed significant weight on the fact that the applicant has been in Australia for over one year and has managed to maintain contact with his family in India during that time by electronic means, and the fact that the applicant does not have any property in his name in India.

5. The applicant also told the Tribunal that he is not concerned about military service commitments or political or civil unrest in India.

6. The Tribunal asked the applicant about his potential circumstances in Australia. The applicant told the Tribunal that his sister presently lives in Australia. The applicant said that his sister is a citizen of Australia and she has been in Australia for ten years. The applicant said that his sister has been a citizen of Australia for approximately four years. The applicant said that he has lived with his sister and her partner since he arrived in Australia in December 2018. The applicant also said that his sister has two daughters who are three and seven years old. The applicant said that his sister has her own family and that he is living with her at the moment and she is supporting him while he is in Australia studying. The applicant also said that he has no property in Australia and that his community ties consist of visits to a Sikh temple on the weekends with his sister and nieces where he undertakes kitchen duties.

7. Taking into account this evidence, on balance, the Tribunal considers that the applicant’s family ties in Australia do constitute a strong incentive to remain in Australia. The Tribunal has placed significant weight on the fact that the applicant’s sister is a citizen of Australia and the applicant has been living with her since he arrived in Australia over one year ago.

8. The applicant told the Tribunal that his current set of courses is scheduled to finish in June 2021. The Tribunal asked the applicant when he plans to leave Australia. The applicant

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said that he plans to get experience and a diploma in Australia. The applicant then said that he plans to leave Australia after June 2021.

1. The applicant told the Tribunal that the highest level of education he achieved in India before coming to Australia was high school; the Tribunal accepts this.

2. The Tribunal asked the applicant why he swapped the proposed focus of his studies from business to automotive studies between the time he applied for his first Student visa in 2016 and the time he applied for this Student visa in 2019. The applicant said that in 2016 he was planning to open a business, being an automobile workshop. The applicant said that he understood the value of overseas study. The applicant said he then worked in a garage for two years in India where he gained experience but no theoretical knowledge. The applicant said he then arrived in Australia on a Tourist visa and after consulting with various people including his sister, he decided that if it was his dream to open an automobile workshop, he would have to study here and get good knowledge.

3. The applicant told the Tribunal that prior to coming to Australia he worked in Vicky Motor Garage as an assistant motor technician from April 2017 to December 2018. The Tribunal accepts this.

4. The applicant told the Tribunal that his future plan is to open an automotive workshop in India. The applicant said he wants to get practical knowledge in Australia first and then he wants to be a mechanic.

5. The Tribunal asked the applicant for details of this future plan. The applicant said that he plans to use his father’s property; the applicant said the site is very good and there is nobody there at the moment. The applicant also provided a list of tools to the Tribunal that he says he will need in order to open his automotive workshop. The Tribunal asked the applicant if he had a business plan for his business. The applicant confirmed that he had not submitted a business plan to the Tribunal, as at the moment his plans are just an estimate and they have not been confirmed. The applicant confirmed that his plan to open an automotive workshop is still just an idea. The applicant said he wants to meet with companies back in India.

6. The applicant’s migration agent made a submission to the Tribunal that in relation to the applicant’s business plan, accountants in India will only give an estimate verbally based on costs and expenses. The applicant submitted to the Tribunal that he expects to earn approximately A$3,000 per month from his automotive workshop in India. The applicant’s migration agent submitted that this figure was based on estimates from accountants in India.

7. The Tribunal asked the applicant if he had discussed his business plan with accountants in India. The applicant said not too much, and that he needed to be a qualified person to have these discussions. The applicant said he planned to get estimates from companies and that he would make a plan from there. The applicant said he had some discussion with accountants in India.

8. The Tribunal asked the applicant how his current set of courses would assist him to achieve his future plans. The applicant said that in India there are very big options for automobiles. The applicant said that now cars are not as expensive and that wages are increasing so people can afford cars. The applicant said that if he is able to open his workshop he will achieve his dreams. The Tribunal pressed the applicant for more information and the applicant said that in Australia he will learn both theoretical and practical aspects in relation to automobiles. The applicant said he will get experience and if he can professionally work in this field that will assist.

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1. The Tribunal again asked the applicant for further information and the applicant said that in a Certificate III he expects to learn the basics including about braking systems, and in the Certificate IV he expects to learn about major issues with cars including electrical issues.

2. The Tribunal asked the applicant why he needed to undertake his current set of courses when he already had experience in working in the industry in India. The applicant said that although he has experience he does not have theoretical knowledge. The applicant said he wants to work for himself and he needs theoretical knowledge and that is why he choose to study in Australia.

3. The Tribunal finds that the applicant has failed to explain in any meaningful detail how his current set of courses will assist him to achieve his future plans. The Tribunal also finds that the applicant has not provided any meaningful detail about his future plan to open an automotive workshop in India.

4. The Tribunal is concerned that the applicant is proposing to stay in Australia until at least June 2021. In this case, the applicant has been in Australia for over one year and he has previously applied for a Student visa, which was refused before he arrived in Australia on a Tourist visa. The Tribunal is not satisfied that the applicant is not simply now proposing further short inexpensive courses in order to gain a Student visa with the primary objective of maintaining ongoing residence in Australia.

5. The Tribunal asked the applicant about the value of the course to his future. The Tribunal has already summarised the applicant’s work as an assistant motor technician in India before he came to Australia. The applicant told the Tribunal that he earned approximately A$4,500 per year in this role. The applicant told the Tribunal he has never worked in Australia.

6. The applicant told the Tribunal that he expects to earn approximately A$3,000 per month once he sets up an automotive workshop in India. The applicant told the Tribunal this is what he is expecting and it is an estimate at this stage. Given that there is no other evidence to support this assertion by the applicant, and in light of the Tribunal’s earlier finding in relation to the applicant’s future plans, the Tribunal does not accept this.

7. In relation to the applicant’s immigration history, the Tribunal has already summarised the applicant’s immigration history before and after arriving in Australia. The Tribunal considers that when the fact that the applicant previously applied for a Student visa to study business in Australia, which was refused, is considered, with the Tribunal’s finding in relation to the applicant’s future plans and the value of his current courses to his future plans, this is evidence that the applicant is attempting to use the Student visa system to remain in Australia for longer. The Tribunal has taken into account the fact that when the applicant initially submitted his first Student visa application he was proposing to study business studies, and the applicant has ultimately decided to study in the automotive field in Australia. The Tribunal has taken into account the applicant’s submission that his business studies would have assisted him to open his automobile workshop, just as he says his automotive studies will assist him to open his automobile workshop.

8. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances that support the genuine intention to remain in Australia temporarily, while recognising the possibility that these may change over time, to utilise wilful means to remain in Australia. The Tribunal has found that the presence of the applicant’s family in India does not, of itself, constitute a strong incentive for the applicant to return to India. The Tribunal has found that the applicant’s family ties to Australia do constitute a strong incentive for the applicant to remain in Australia. The Tribunal has also found that the applicant has failed to provide any meaningful detail about his future plan to open an automobile workshop in India,

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and the applicant has failed to explain in any meaningful detail how his current set of courses will assist him to achieve his goal.

1. When this evidence is considered in light of the fact that the applicant has previously applied for a Student visa to study business and this visa was refused, on balance, the Tribunal is concerned that a Student visa may be used primarily for maintaining ongoing residence. On this basis, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

   Conclusion on cl.500.212

2. Accordingly, the applicant does not meet cl.500.212(a). 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.

3. Given these 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, and accordingly, the decision under review must be affirmed.

   DECISION

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

   Margaret Forrest
   Member

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