Gill (Migration)

[2019] AATA 1800

Gill (Migration) [2019] AATA 1800 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajinder Singh Gill

CASE NUMBER:  1722348

HOME AFFAIRS REFERENCE(S):           BCC2017/2699241

MEMBER:Peter Booth

DATE:15 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 April 2019 at 3:46pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Diploma of Leadership and Management – not genuine temporary entrant – completed various courses– economic circumstances – lack of evidence of substantial ties in home country – no significant incentive to return to home country – family ties in Australia – using visa program to maintain residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection on 4 September 2017 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 29 July 2017. 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. of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter.

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

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.

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:

   (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?

9. 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 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.

10. 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.

11. The applicant obtained a visitor visa (class FA, subclass 600) valid from 4 August 2017 to 6 January 2017.  He arrived in Australia on 8 February 2017.

12. The delegate refused the application for a student visa (subclass 500) because the applicant had not supplied adequate information to demonstrate that he was a genuine temporary entrant.

13. The applicant gave evidence at the hearing, with the aid of an interpreter, to the following effect.

14. The applicant completed a Bachelor of Arts in 2012 and a Masters of Arts in 2014 whilst in India.  The Masters degree was in the Punjabi language.  He said that he undertook such a degree because his family wanted him to do so.  He expected to obtain employment in a regional area as a teacher.

15. The applicant first came to Australia on a visitor visa, arriving on 1 March 2015.  His intention was to visit his sister on the occasion of her ‘marriage anniversary’.  He left Australia after about ten weeks and completed a certificate level computer course in India.  It took about six months to complete.  He then completed a one year practical course to be a plumber.  He said it had no name but was undertaken at the International Training Institute in India.

16. The applicant said that he completed the plumber’s course so that he could get a trade job.  He tried to obtain such employment but was unsuccessful.  He returned to Australia in February 2017 on a second visitor visa and intended to stay for three months to travel and visit his sister and niece.

17. The applicant applied for a student visa on 29 July 2017 which was refused.  He said that he left Australia between January 2017 and July 2017 and returned to India. 

18. The applicant said that his intentions were to study in Australia because he did not think his ‘communication’ skills were adequate.

19. The applicant started a ‘Level IV EAL’ course in October 2017 but did not complete it.

20. The applicant said that his visa application was rejected in September 2017. 

21. The applicant said that he looked for another opportunity to study.  He enrolled and completed a Diploma of Business in October 2018 and enrolled in a Diploma of Leadership and Management in February 2019.  It is due to be completed in February 2020.

22. The applicant said he wants to study the Diploma of Leadership and Management because he has been unable to find employment.  He gave evidence that he ‘met people at a party in Australia’ and they told him that a Diploma in Leadership and Management would further his family business in India.

23. The applicant said that his family business in India is that of agriculture and ‘cattle rearing’.  He said that whilst his father ‘looks after it’, the applicant has to ‘lead and promote’ the business.  He had worked on the family farm after school when he was younger.  The farm is 4,280 square feet in size and his father also leases 8-10 acres separately.

24. The Tribunal inquired whether qualifications in agriculture may be more relevant.  He said that such a course would be long and that if he wanted to sell or expand the farm he would need the diploma skills.

25. The applicant’s immediate family in India comprises his mother and father.  His two sisters reside in Australia.  He estimated the value of the family farm to be about $120,000AUD.  He said there was no reason why he could not return to India or that there would be any adverse consequences were he to do so.

26. The applicant said that he was not working.  He gave evidence that one of his sisters is ‘a citizen’ of Australia and the other is ‘a permanent resident’.

27. The Tribunal observed that after his second visit to Australia as a visitor he quickly changed his intention to become a student.  He was asked to explain the change in his intention.  He said that he did not come to Australia with the intention of studying but met ‘people’ who told him that it would be beneficial for him to do so.

28. The applicant said that he could study a Diploma of Business course in India but it would be of 3-4 years duration and no short courses were offered.  However, that the content of the Australian course was the same as that offered in the longer Indian courses.

29. The Tribunal asked him to explain why he had chosen to study vocational courses in disparate fields (computers, plumbing and business) after obtaining a higher degree in the Punjabi language.  He said that he had not come to Australia with the intention of studying the business course.  His representative declined the opportunity to add anything to the applicant’s oral evidence at the hearing.

30. By email dated 2 April 2019, subsequent to the conclusion of the hearing, the applicant’s migration agent provided a letter from ALTEC College dated 29 March 2019.  This letter confirmed that the applicant is enrolled in a Diploma of Leadership and Management at ALTEC College from 18 February 2019 to 16 February 2020.  The Tribunal is satisfied that the applicant is currently enrolled in a course of study.

31. The Tribunal is not satisfied that the applicant is a genuine temporary entrant for several reasons.

32. First, the applicant’s previous study in higher level Punjabi language is entirely inconsistent with the stated intention to complete a general vocational course in business to assist in the family farming business.

33. Secondly, whilst the applicant has started and completed various courses both here and in India, their disparate nature and educational level does not suggest a clear path of study designed to further a career.  Rather, the studies suggest, particularly those in Australia, a desire to undertake low level courses for the purposes of remaining in Australia.

34. Thirdly, the applicant has strong ties to India but equally strong ties in Australia, namely two sisters who have rights to stay indefinitely.

35. Thirdly, the desire to assist in an undefined management and promotional role for a small family farm is both recent, having regard to his completed studies, and is unconvincing.  The Tribunal does not accept that to be his real reason for undertaking the course. It is completely inconsistent with his earlier studies and convenient in that it provides a vehicle for a continued presence in Australia.

36. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to India.  The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

37. The Tribunal has considered the applicant’s personal ties to India.  While the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

38. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

39. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

40. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

41. Given the above 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. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Peter Booth
    Member