Garg (Migration)

[2019] AATA 3752

Garg (Migration) [2019] AATA 3752 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nancy Garg
Mr Dishnat Mittal

CASE NUMBER:  1820936

DIBP REFERENCE(S):  BCC2016/2231614

MEMBER:Adrienne Millbank

DATE:30 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 30 July 2019 at 5:38pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – illogical or irrational reasoning – genuine temporary entrant – study gap – reasons for undertaking study in Australia – value of course to applicant’s future – relevance to running husband’s family’s business – small grocery store – limited travel home – income disparity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 572.223, 572.322

CASES
MIAC v SZMDS (2010) 240 CLR 611

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 and Border Protection to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) is a 29 year old Indian national. She first arrived in Australia on 7 May 2016 as a dependent on her husband’s Student (Subclass 572) visa, which ceased on 13 July 2016. The parties married in India in April 2015. They have a child, born in Australia in 2017, while the parties were on Bridging visas. The second named applicant has worked as a taxi driver in Australia; the applicant has not worked.

3. The applicant’s husband, the second-named applicant, first arrived in Australia on 2 November 2008 on a Student (Subclass 573) visa, enrolled in an intensive English course and a Diploma of Community Welfare work. He was subsequently granted a number of Student (Subclass 572) visas. The second named applicant’s Provider Registration and International Student Management Systems (PRISMS) records show that his enrolment in the Diploma of Community Work course was cancelled. They show that between September 2008 and June 2016 the second named applicant enrolled in: a Certificate III in Hospitality (Commercial Cookery) course (several times); a Diploma of Management (several times); a Diploma of Hospitality (several times); a Diploma of Hospitality Management; an Advanced Diploma of Hospitality Management; a Certificate IV in Business; an Advanced Diploma of Hospitality; an Advanced Diploma of Management (learning); an Advanced Diploma of Marketing; a Vocational Graduate Diploma (learning); a Vocational Graduate Certificate in Management (learning); and a Diploma of Business Administration. They show that most of these enrolments were cancelled.

4. The applicants applied for the visas on 28 June 2016. The Delegate decided to refuse to grant the visas on 4 August 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).

5. In this case the applicant applied for a Student (Subclass 572) visa in the Vocational Education and Training stream, based on her enrolment in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management. 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. The Delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

6. The Delegate noted in the decision record that the applicant had completed a Bachelor of Technology in Computer Science Engineering in India in 2013; that the applicant had provided no evidence of ownership of any assets or business ties in India; and that the applicant’s husband was with her in Australia. The Delegate noted that the applicant had chosen a course at a lower level than the qualification she held; had not provided a written statement or study plan which outlined reasons for changing her study field; had not demonstrated the value of the course to her future; had not set out her anticipated remuneration; and had not otherwise explained why a diploma level qualification would be of a greater benefit to her than the degree she already held. The Delegate in summary was not satisfied that the information provided by the applicant regarding her circumstances in her home county, her potential circumstances in Australia, the value of her proposed course to her future, and her immigration history, was sufficient to demonstrate that she was a genuine temporary entrant.

7. On 8 September 2017 a differently constituted Tribunal affirmed the Delegate’s decision to refuse the applicants Student (Subclass 572) visas. That Tribunal in its decision record noted that the applicant declared she wanted to finish her Diploma and Advanced Diploma of Leadership and Management in Australia and return to India to assist in her husband’s family business. It was not clear to that Tribunal on the evidence provided why the applicant would be prepared to work in a family business when she had committed time and resources to her education by completing a Bachelor degree. That Tribunal further was not satisfied that the courses the applicant had chosen to enrol in were necessary if the applicant planned to work in her in-laws’ business, or that they would be of any additional benefit given her stated career plans.

8. That Tribunal noted that the applicant had not returned home since arriving in Australia; that her husband was living and working here; and that the parties had the education and ability to support themselves financially in Australia. That Tribunal was not satisfied that the applicant intended genuinely to stay in Australia temporarily. As that Tribunal found that the applicant did not satisfy the primary criteria, it found that the secondary applicant was unable to meet the criteria for the visa.

9. The applicant applied to the Federal Circuit Court of Australia for judicial review of the decision. The application was made on the ground that the Tribunal committed jurisdictional error in that its decision that the applicant’s proposed study would not be beneficial, and that the applicant was not a genuine temporary entrant, was illogical where the benefits of the proposed study were clear on the evidence.

10. On 2 July 2018 Judge Vasta remitted the decision to the Tribunal for reconsideration. Judge Vasta found that it was not open on the evidence for the Tribunal to conclude that the applicant had not provided sufficient reasons for deciding to study in Australia, or that the applicant had not demonstrated how her proposed courses would benefit her in the future in her own country.

11. Judge Vasta found the Tribunal’s conclusion that the applicant’s study was not beneficial was underpinned by the Tribunal’s incredulity that a woman would be prepared to study for a degree such as the Bachelor of Technology in Computer Science and yet, in effect, throw it all away to work with her husband and her husband’s family managing a supermarket. Judge Vasta considered that wanting simply to become part of a husband’s life and manage a supermarket was not an incredible course of action in — he used the word in inverted commas — less “enlightened” societies where women are more likely to be ‘a cog in the machine of their husband’s destiny’. He considered that in the circumstances of the applicant an advanced diploma in leadership and management may have been of benefit to her. 

12. The judgement applied the principle from MIAC v SZMDS (2010) 240 CLR 611 that it amounted to a jurisdictional error if no rational or logical decision-maker could arrive at the decision or a state of satisfaction on the same evidence.

13. The applicants appeared before the Tribunal on 4 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

14. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing. At the end of the hearing the representative requested and was granted a period of 14 days to provide further documents including a written submission. On 18 June 2019 the Tribunal received a request for an extension of time to provide post hearing submissions, which was granted. On 2 July 2019 further documents including a written submission by the parties’ representative were received by the Tribunal. These documents have been considered.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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)     …

17. 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.

18. 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.

19. The Tribunal asked the applicant at hearing why she and her husband did not return to India to have their first child, following the completion of her Diploma of Leadership and Management and her husband’s many years of study, rather than remaining in Australia on Bridging visas with limited work rights and without the support of family members for about a year during which neither of them was engaged in study. The applicant responded that they ‘won the court case’. She further advised that she wanted to ‘complete’ her studies.

20. Regarding the gap in her studies from August 2017 to July 2018, the Tribunal was advised that the applicant had a car accident and suffered health issues (hyperthyroidism) following the birth of her child, which prevented her from studying. The Tribunal was also advised that the applicant was on track to complete an Advanced Diploma of Business in 2020, and that she intended to return to India after the successful completion of this course. Evidence was provided that the applicant was enrolled in and had completed some units of study towards her Diploma of Leadership and Management at New York College in Brisbane, and at the time of decision is enrolled in an Advanced Diploma of Business at American College in Brisbane. The Tribunal accepts that the applicant has progressed in her coursework.

21. The Tribunal asked the applicant what she thought of Judge Vasta’s decision where he suggested that as an Indian woman she sees herself, despite her university degree, as ‘a cog in the machine of her husband’s destiny’, and for this reason has no career ambition other than to help run her husband’s family’s business which appeared to him to be a supermarket. The applicant stated that she agreed with the decision, and confirmed that she has no career ambition other than to work with and support her husband. She advised that in any event she had been unsuccessful in finding employment based on her degree; that she had worked in India only in marketing before coming to Australia; and that she now lacks the sort of experience necessary to obtain employment in her original field of study. She further advised that it was not intended that she would run the business, which she described as a grocery shop, but that she would assist her husband who would inherit his father’s half share in it.

22. The applicant claimed at hearing that her objective in studying in Australia from the outset has been to obtain qualifications in leadership and management so as to enable her to work in her husband’s father’s business. She claimed as well that her husband’s objective in coming to Australia to study was also, from the outset, to equip him to work in the business. However when the Tribunal asked the applicant what courses her husband, the secondary applicant, had studied, and what qualifications (certificates, diplomas, degrees) he had obtained, she appeared confused. She stated that he studied ‘the same’, that is, leadership and management. She claimed that he successfully completed his courses. She then advised that the secondary applicant also enrolled in a course in cooking but that the purpose of this was only so he could cook for himself while living without family in Australia.

23. Adopting the procedures of s.359AA of the Act, the Tribunal advised the applicant that it had information that would, subject to her comments in response, be the reason or a part of the reason for affirming the decision under review, and that this information was in her husband’s PRISMS records. The Tribunal advised that these records showed that the secondary applicant had enrolled in a number of courses, including a Diploma of Community Welfare Work, Diplomas in Hospitality and Hospitality Management, Certificates in Commercial Cookery and a Diploma of Business Administration, but that he had not, as she had advised, enrolled in a Diploma in Leadership and Management or an Advanced Diploma in Leadership and Management.

24. The Tribunal advised the applicant that the information showed that the secondary applicant had enrolled in a number of similar courses over an extended period of time (over eight years), and that most of his enrolments (17 out of 28) had been cancelled. The Tribunal advised that the information was relevant because it suggested that the secondary applicant’s course enrolments were for the purpose of enabling him to live and work in Australia rather than to obtain qualifications to work in his father’s business, as she had claimed. The Tribunal advised the applicant that the information further suggested that if she was ‘a cog in the machinery of her husband’s destiny’, as she had agreed, her purpose in applying for the visa appeared to be to enable her husband to continue to live and work in Australia beyond the expiry of his last Student visa. The Tribunal pointed out that the applicant applied for the visa only two weeks before her husband’s last Student visa ceased.

25. The Tribunal advised the applicant that she could seek an adjournment and consult with her representative before responding to the information and the Tribunal’s stated concerns regarding her and her husband’s genuine intentions to stay temporarily. The applicant did not seek an adjournment. She responded that she is a genuine student and that she and her husband intend to return to India when she completes her Advanced Diploma of Business in 2020. The secondary applicant stated that while he had not studied the exact same courses as the applicant (he claimed, without any supporting information or explanation, that diploma level courses in leadership and management were not available to him during the time he studied), the courses he enrolled in, apart from the Diploma in Community Welfare, but including cookery, all had relevance in a general business oriented sense to his and the applicant’s intention to take over and expand his father’s retail business when they return to India. He further argued that his course cancellations were due to provider closures and other provider issues, rather than any lack of motivation on his part to complete his studies and return to India. He claimed that the fact that he did not lodge an application for permanent residence based on his Certificate III course in cookery showed that he was a genuine temporary entrant.

26. The Tribunal found these explanations weak and unconvincing and does not accept them. The Tribunal considers that the secondary applicant enrolled in a number of similar courses over an extended period of time (over eight years), for the purpose of enabling him to live and work in Australia, rather than to obtain qualifications to work in his father’s business, as the applicant had claimed.

27. The applicant acknowledged that her husband the secondary applicant has lived in Australia since November 2008 on a succession of Student and Bridging visas. She advised that he has worked as a taxi driver since arriving in Australia. The Tribunal asked the applicant whether she and her husband had considered returning to India when she completed her Diploma of Leadership and Management in 2017, as they would seem to have had at that time, according to her testimony, sufficient qualifications between them to run a small family business. The applicant stated that she and her husband did briefly consider returning home at that time, but she decided to complete her studies so they would both be fully credentialed and equipped to run the business. She advised that she is learning valuable lessons about how to manage and lead teams.

28. The Tribunal referred the applicant to evidence provided to the previously constituted Tribunal in June 2017, including a valuation of her father-in-law’s business undertaken by a chartered accountant, which describes the business as a shop measuring 36.5 square yards, co-owned by her father-in-law’s brother, and worth around AUD 98,325 dollars. The applicant confirmed that this is the business she and her husband intend to manage when they return to India. She acknowledged that the business is a small grocery shop rather than a supermarket, and that that it employs only one person, her father-in-law, as salesperson and manager. When asked about the shop’s annual turnover the applicant was hesitant, but settled on AUD 10,000 to AUD 20,000. 

29. The second named applicant subsequently advised that the shop’s turnover varied and could in some years be higher, and that his father takes ten to twenty per cent of the turnover as a wage. The applicant further advised that the shop is in a small city of around 100,000 people; that her uncle has agreed to her and her husband running it in the future; and that when they return to India her father and mother in law will retire and they will live together in the family home.

1. The Tribunal asked the applicant why she could not complete her studies in India as such studies would be based on the local economy, business laws, culture and practices, and therefore of more direct relevance to her father-in-law’s small retail business. The applicant responded that qualifications from Australian institutions, including diplomas of leadership and management from providers such as New York College in Moorooka Brisbane and American College in Woolloongabba Brisbane, are highly regarded in India. She stated that course content in India focusses on the theoretical while Australian courses provide practical skills and for this reason are highly regarded by employers. She asserted that Australian qualifications confer an advantage in the job market in India. She stated again that she is acquiring valuable skills including in team development and leadership.

2. The applicant’s responses to questions at hearing regarding the worth and relevance of her studies and of her husband’s studies to their future in India — for example, Australian qualifications from whatever agency are highly esteemed in India, and Australian qualifications from whatever agency confer an advantage in the job market in India —  were general, clichéd and vague. They were unconvincing in light of the applicant’s inability to provide correct information about her husband’s studies and qualifications, which would be expected if the applicant valued Australian qualifications highly and considered them important to her and her husband’s future in India, as she had claimed.

3. The Tribunal put to the applicant that she and her husband had no need for Australian qualifications or further Australian qualifications as they were not intending to apply for jobs in India; that there was room and need in the family shop for only one (sales) person at a time; that the turnover and profits appeared insufficient to employ staff; and that because there were no employees there was no team to lead or manage. The applicant responded that she and her husband intend to expand the business and employ staff in the future. The secondary applicant stated that there was land adjacent to the shop that could be used.

4. Following the hearing, on 2 July 2019 the Tribunal received an undated, unsigned, one and a half page document titled ‘Business Plan’. This document states: ‘We have supermarket with about (13 width, 36 length). Its triple story building, big space at the backend, averaging sales of $60,000 - $70,000’. Photos were attached, showing a very small shop with room for only one vendor, at ground level of a three story building.  The document lists three objectives: to expand the building; to replace existing equipment; and to ‘boost image and awareness’. The document describes plans to sell goods (food, medicine, health products and beauty products) online, and to construct a restaurant ‘to provide cooking and catering and food delivery services’.

5. Under the heading ‘Financial Approval’ the ‘Business Plan’ document states: ‘We have financial approval’.  No evidence of this financial approval was provided. The Tribunal finds the document unconvincing as evidence that the applicant has enrolled in a course of study for the purpose of gaining qualifications necessary to work in her husband’s family business, and that she has a genuine intention to return to India on completion of an Advanced Diploma of Business course.

6. Having considered all the evidence and the arguments the Tribunal is not satisfied that the applicant’s studies in Australia have been and are for the purpose of equipping her to manage the family business. The Tribunal considers that her enrolments have been for the purpose of maintaining the parties’ residence and the secondary applicant’s employment in Australia. 

7. There is no information before the Tribunal to indicate that the applicant has not complied with the conditions of her first Student (Subclass 572) visa she was issued as a dependent of her husband. There is no information before the Tribunal to indicate that she has been refused a visa to enter any other country, or that she has failed to comply with her visa conditions in another country.

8. No claim was made and no information was before the Tribunal to suggest that the applicant is motivated to remain in Australia by military service commitments, political or civil unrest in her home country. The Tribunal gives little weight to these factors. The Tribunal considers the applicant and her husband are motivated to remain in Australia because they prefer to live and work in this country, not because they fear returning to India.

9. The Tribunal accepts that the applicant has family in India but notes that she has not returned home even for a visit since arriving in May 2016, and that her husband and child are with her in Australia. The Tribunal accepts that the applicant suffered from hyperthyroidism for a time following the birth of her child, but does not accept this explains the lack of a visit home during a period of over three years. The Tribunal does not consider the applicant’s personal ties in India are a significant incentive for her to return home. The Tribunal notes that the secondary applicant has lived and worked in Australia for over ten years, during which time he would have established friendships and other ties in which the applicant, his wife, would be included.

10. The Tribunal considers it likely that the secondary applicant can earn more in Australia driving taxis that he could earn managing his father’s business in India, and that this a significant incentive for the applicant to remain Australia. The Tribunal further considers it likely that the applicant, who has a degree, could earn more in Australia than she could working in her husband’s family’s business in India. The Tribunal considers the economic circumstances of the applicant to be a significant incentive for her not to return to her home country.

11. The Tribunal considers that the applicant, who has lived here for over 3 years and whose husband has lived here for over 10 years, on student and bridging visas, has a good knowledge of living in Australia, and of courses of study and course providers available to her.

12. 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).

13. 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.

14. As the applicant has been found not to meet the criteria for the grant of a Student (Temporary) (Class TU) visa, the secondary applicant cannot meet cl.572.322.

    DECISION

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

    Adrienne Millbank

    
    

    Member