Gagandeep Singh (Migration)

[2020] AATA 2811

Gagandeep Singh (Migration) [2020] AATA 2811 (25 May 2020)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Mr  Gagandeep Singh

CASE NUMBER:  1826017

HOME AFFAIRS REFERENCE(S):          BCC2018/2821666

MEMBER:Michael Biviano

DATE:25 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 25 May 2020 at 10:43am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–family ties to home country –applicant is currently enrolled – continued to study while waiting for visa outcome – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, 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 Home Affairs on 20 August 2018 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 July 2018. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) for the reason that he was not a genuine applicant for entry and stay as a student because he did not intend to stay in Australia temporarily

4. The applicant appeared before the Tribunal on 20 April 2020 to give evidence and present arguments.

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

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 was a genuine applicant for entry and stay as a student.

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

9. 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?

10. 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.

11. 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.

12. The applicant is a 26 year old Indian National who came to Australia on 13 March 2016.  He entered Australia after obtaining an initial student visa to study a Master of Professional Accounting.  The initial visa was for a period of approximately 2 years and 3 months.  The applicant applied for the current student (Class TU Subclass 500) visa on 27 July 2018 and he has remained in Australia during this time on a bridging visa.

13. The Decision Record of the Delegate of Home Affairs dated 20 August 2018, which was provided to the Tribunal by the applicant, confirms that the applicant made his application for the current student (Class TU Subclass 500) visa on 27 July 2018 (Decision Record).

14. The Decision Record confirms that the applicant has resided in Australia for a period of 4 years on both student visas and bridging visas.

15. On 10 March 2020 the applicant filed with the Tribunal a response within the time he was to file a response pursuant to an invitation to supply student information about the courses he was studying and information about his entry and stay in Australia in accordance with s.359(2) of the Act (Response).

16. In addition to the Response the applicant also filed a confirmation of enrolment certificate (COE) No. A2C4F235 for the applicant to study an Advanced Diploma of Leadership and Management at TasCollege between 24 February 2020 and 22 August 2021.

17. The applicant prior to coming to Australia completed a Bachelor of Commerce from Panjab University in April 2015.  After completing his studies in India the applicant then undertook preparation and applied for his initial student visa and then came to Australia.

18. Since being in Australia the applicant has studied and completed a Master of Professional Accounting at Latrobe University which he studied from February 2016 through to August 2016 and obtained his Master’s qualification.

19. The applicant gave evidence that he required further qualifications to supplement the qualifications he had already obtained previously in both India and Australia in relation to commerce and accounting.  He claims he made enquiries with a number of employers who recommended that obtaining a Leadership and Management qualification would assist him in seeking to obtain employment back in India.

20. The applicant had, prior to coming to Australia, completed a six month internship at a company called Reliance which provided computer IT services with accounting services.  The claimed the position that he held as an intern was unpaid. but the applicant claims he made contacts through that placement.

21. Accordingly the applicant claims that he decided to study a suite of leadership and management courses being a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.

22. The applicant gave evidence that he enrolled at Gen Institute in Melbourne for the purposes of undertaking those qualifications.  However he claims he did not enjoy his studies there and was unhappy with the way the course was operated.  He studied there for a period of 2 months between around October 2018 to November 2018.

23. In December 2018 he enrolled in a Diploma of Leadership and Management at TasCollege, in Tasmania,  which he completed in December 2019. 

24. The applicant is now enrolled in an Advanced Diploma of Leadership and Management which he commenced in February 2020 and is now expected to conclude in August 2021.  If the applicant completes the course he will have remained in Australia for a period of 5 years and 5 months.

25. The applicant has had several jobs whilst he has stayed in Australia including:

    (a)working as a car wash attendant at Sparklers Car Wash in March 2016 earning $450.00;

    (b)working as a customer service representative at Foodworks Bottlemart between June 2016 and February 2017 earning AU$10,500 per annum;

    (c)as a driver for Tip Top Bakery between August 2017 and November 2018 earning on average AU$40,000 per annum; and

    (d)from May 2019 to March 2020 working as a bus operator/driver at Metro Tasmania earning on average AU$40,000 per annum.

26. The applicant gave evidence that he works no more than the hours required under the visa.  However the rate disclosed by the applicant of $40,000 per annum is a high level of wages.  Such high level of wages would not present as a significant incentive for him to return home to India and in fact would create an incentive for him to remain in Australia.

27. The applicant in his studies has undertaken studies in commerce, accounting and now in leadership and management.  Those courses do have a connection to each other and are somewhat complimentary.  The applicant has claimed he wishes to complete the Advanced Diploma of Leadership and Management in order that he could return to India and seek to obtain a position as a management accountant within a large organisation back in India.  The applicant gave evidence that if he was to obtain such a role within India he would expect as a commencing wage to earn 1.2 to 1.8 million Indian rupee per annum (which equates to A$20,000 to A$22,000 per annum).  The applicant in the Response and in evidence confirmed he was interested in trying to obtain that management accountant role in top accounting firms back at home such as KPMG, PWC and Deloitte. 

28. The applicant was questioned about the value of completing the Advanced Diploma of Leadership and Management in Australia. Whilst the applicant conceded that he already had strong qualifications in both accounting and commerce he claimed that he had deficiencies in relation to leadership and management and that the leadership and management qualification in Australia would assist him in getting a job back in India.  When questioned what difference the Advanced Diploma would make on top of his current qualifications the applicant gave evidence that he estimated that it would make his position more marketable and that he would likely to obtain an increase in remuneration of approximately AUD$2,000 per annum. 

29. In light of those matters and his previous qualifications in Australia and his home country, the Tribunal finds that the current course of study being an Advanced Diploma of Leadership and Management will marginally improve his employment prospects and income that he would receive in employment back in India. 

30. The Tribunal recognises that it is always important to allow for reasonable changes to career and study pathways.  However this is not the case where the applicant has merely decided to change courses and career pathways through undertaking short vocational education training (VET) courses. 

31. The applicant has recently completed a Diploma of Leadership and Management and is now studying an Advanced Diploma of Leadership and Management.  Those courses are short VET courses and are the lowest level of qualification that he has undertaken in Australia.  Those courses do not reveal a progression in his studies having regards to the fact that he has already obtained a Bachelor’s degree in India and a Master’s qualification in Australia.  The Tribunal finds that his present course of study is inconsistent with his level of education.

32. The applicant gave evidence that he is undertaking those studies in Australia because the level of education is much better than that in India in management courses. 

33. The Tribunal finds that the applicant has reasonable motives to study this course in Australia rather than in his home country.  Further in light of the applicant’s previous qualifications both in India and in Australia together with his work experience, the Tribunal finds that his present course of studies will only marginally improve his employment prospects and remuneration in India.

34. The Tribunal also finds that the applicant’s course of studies if he completes the Advanced Diploma of Leadership and Management in August 2021 will result in the applicant having remained in Australia for 5 years and 5 months which is a considerable period of time and borders on being inconsistent with his stay in Australia being on a temporary basis.  It would be expected that at the conclusion of that course he would return home forthwith.

35. At the date of this decision the applicant has lived in Australia for 4 years and he has a substantial degree of knowledge of Australia. 

36. The Tribunal is also satisfied based on the applicant’s evidence that he has just completed a Diploma of Leadership and Management at TasCollege and has now undertaken the Advanced Diploma at the same College that the applicant has a substantial degree of knowledge of both the course and the education provider.

37. The applicant further conceded that the level of wages in India were generally less than those in Australia which would not provide him with a significant incentive to return home to India.  Further the applicant also gave evidence that the economic conditions in Australia were better than those in India however the conditions in India were improving.  The economic conditions in India would not provide him with a significant incentive for him to return home to India.

38. The applicant has returned home once during his stay of 4 years that he has resided in Australia for a total stay in India of 1½ months.  The applicant gave evidence that he was granted a bridging visa Class A which prevented him from returning home after his visa was refused and that was his explanation for not returning home more often.  The Tribunal notes that the applicant’s refusal occurred in August 2018 and in the circumstances accepts his explanation for the relatively infrequent visits home and short period of time he has spent out of the country whilst he has stayed in Australia for 4 years.  The Tribunal does not make any adverse finding in relation to that matter.

39. The applicant in the Response stated that he does not hold any assets in India and has a total sum of assets in a car and cash of $10,000 in Australia.  Those asset holdings would not provide the applicant with any incentive to return home to India. 

40. The applicant in the Response and at the hearing stated he did not have concerns about returning home to India.  He had no concerns about military service commitments or any political and civil unrest in his home country.  The Tribunal finds they do not present a significant incentive for him not to return home.

41. The applicant has ties both to Australia and to India.  The applicant gave evidence that his mother and father reside together in India and that he is their only son and that he is required to return home to look after them once he has completed his studies in Australia.  The applicant gave evidence that his father is due for retirement in August next year and that would require him to return home to look after them.  Those ties would ordinarily provide a strong incentive to return home however this must be considered in the context of his ties to Australia.

42. The applicant’s personal ties to Australia include that he is a member of a number of sporting clubs that he has played soccer with including the Hobart Zebras, Heidelberg Eagles and the Azad Soccer Club and he has had involvement in doing community activities with those clubs.  Further he is in employment earning a high level of wages and that would provide him with a substantial incentive to remain in Australia.  The applicant is also living in accommodation with friends.  The Tribunal finds that these matters also demonstrate that he has a substantial incentive to remain in Australia rather than to return home.  However this must be balanced with the applicant’s motivations to study in Australia and that the courses he is study will assist him in obtaining employment in a management role in a large accounting firm in India.

43. The applicant in the Response and in evidence confirmed that he has not been refused any other visas either in Australia or overseas and there is nothing to suggest that it impacts on his suitability to remain in Australia. 

44. Based on the above matters, the Tribunal is satisfied that the applicant has made this application to gain a student visa to study temporarily.  This is supported by the applicant’s conduct in continuing to undertake studies whilst waiting for the visa application appeal to be heard by the Administrative Appeals Tribunal.  He has since the refusal of his student visa completed a Diploma of Leadership and Management and he is now undertaking an Advanced Diploma of Leadership and Management, which he is undertaking in Tasmania. 

45. The fact that he has moved states to undertake these courses is consistent with the applicant not being in stable accommodation for the duration of his stay in Australia and is more consistent with his stay being temporary.

46. Considering that the applicant intends only to study in Australia for a further 15 months and he intends undertaking those studies in Tasmania, and further  based on the courses that he has completed since the refusal of the visa, the Tribunal is satisfied that the applicant is genuinely studying and his circumstances are consistent with a motivation to remain here temporarily. 

47. On the basis of the above the Tribunal is satisfied that the applicant intends genuinely to study in Australia temporarily. 

48. Accordingly the applicant does meet cl. 500.212(a) of Schedule 2 to the Regulations.

49. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

50. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

51. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212(a) of Schedule 2 to the Regulations.

    Michael Biviano
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.