Grewal (Migration)

[2018] AATA 5715

Grewal (Migration) [2018] AATA 5715 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh Grewal

CASE NUMBER:  1711049

HOME AFFAIRS REFERENCE(S):           BCC2017/1027595

MEMBER:M. Edgoose

DATE:26 October 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 26 October 2018 at 3:12pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – genuine temporary entrant – non-completion of courses – lack of academic progress – immigration and travel history – circumventing migration programme – economic incentive for maintaining ongoing residency – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359(2), 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 Immigration and Border Protection on 15 May 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 15 March 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 visas 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 intends genuinely to stay temporarily in Australia.

4. On 6 August 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 20 August 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant responded to the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” on 20 August 2018 (AAT Folio 39-45) and informed the Tribunal that he did not consent to the Tribunal deciding the review without a hearing.

6. The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was assisted in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 intends genuinely to stay in Australia temporarily.

10. 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?

11. 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.

12. 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.

    Background and applicant’s immigration history

13. The applicant gave evidence at hearing that he is from India and first arrived in Australia on 30 July 2009 as a dependent on his first wife’s 572 student visa to study. The applicant and his first wife separated in 2011. The applicant stated to the Tribunal that he was granted his own 570 student visa on 19 December 2011 to study a English as a Second Language course which the applicant completed on 3 October 2012 (AAT Folio 78).

14. The applicant informed the Tribunal that between September 2013 and February 2017 he did not complete any of the courses that he was enrolled in. The applicant stated that during this time he always went to classes but did not pass any of his courses. Between 9 February 2015 and 3 April 2015 the applicant stated that he returned to India to visit his sick father and that he become stressed about his studies and father. The applicant submitted to the Tribunal medical evidence of his father’s illness (AAT Folio 94-96) but did not have any medical evidence about his own stress and lack of academic success during this period. The applicant also returned to India from 2 November 2016 until 19 December 2016 when his mother also became ill (AAT Folio 92-93). The applicant stated to the Tribunal that he had no academic success during this period of time when both his parents were ill but he was able to still remain in Australia and gainfully employed to earn a considerable income on a student visa. The Tribunal is concerned given the amount of time the applicant has been in Australia that the student visa has been used primarily for maintaining ongoing residence and that he has been onshore for some time without successfully completing a qualification.

15. The applicant informed the Tribunal that his ex-wife gave him a hard time after divorcing. The applicant stated that after they separated he applied for his own 570 student visa which was granted on 19 December 2011. According to the applicant his ex-wife applied for her own visa after the divorce which was refused and she returned to India in 2013.  

16. The applicant applied for the visa on 15 March 2017. The delegate refused to grant the visa on 15 May 2017 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

17. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history. The applicant informed the Tribunal that he has departed Australia on 3 occasions since arriving in July 2009. The most recent was in late November 2016 when he returned to India to visit his ill mother. The applicant told the Tribunal that Australia is the only country that he has travelled to outside of India and that he has complied with the migration laws of the country. The Tribunal gives little weight to the applicant’s travel movements.

    The applicant’s circumstances in their home country                    

18. The Tribunal has considered the factors in clause 9 of Direction 69 with respect to the applicant. At hearing the applicant informed the Tribunal that he had completed his secondary schooling back in India in 2004 and a Bachelor of Arts between 2005 and 2008 and had helped his father on the farm and was not paid before coming to Australia.

19. The applicant told the Tribunal that he had not completed his studies back in India because the applicant likes the style of teaching in Australia compared to the style of teaching back in India and that Australia being an English speaking country he will give him the opportunity to gain a higher understanding of the language. The Tribunal does not accept the applicant has completed sufficient research on the types of cookery and hospitality courses that are available back in his home country and has not provided reasonable reasons for not undertaking his studies back in India.

20. The applicant told the Tribunal that his parents, second wife are back in India. The applicant’s father is a farmer and his mother is a house wife. The applicant informed the Tribunal that he has been able to manage personal relations with his parents and wife back in India while living in Australia by making contact on a daily basis via the social media applications Messenger and WhatsApp. In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.

21. The applicant stated to the Tribunal that he has no issues of concern back in India.

    The applicant’s potential circumstances in Australia

22. The Tribunal has considered the factors in clause 11 of Direction 69 with respect to the applicant. The applicant stated to the Tribunal that he has no significant ties to Australia. The Tribunal considers the applicant has significant ties within Australia, most notably his cousin and her husband who the applicant lives with and are Australian citizens. The Tribunal considers that this would present as a strong incentive to remain in Australia. 

23. The applicant informed the Tribunal at the time of the hearing that he is in the final weeks of completing his Certificate IV in Commercial Cookery on 14 October. The applicant then intends to complete a Diploma of Hospitality Management (AAT Folio 81b and 80) from 15 November 2018 to 14 May 2019. The applicant told the Tribunal that the Certificate IV in Commercial Cookery course was about customer service, finance, management conflict, in house customer service, monitoring work and safety practice and the leading and managing of people. The Diploma of Hospitality Management course will be about the overall running of a restaurant, bar or café. The applicant was not able to provide the Tribunal any further information about his current and upcoming courses. Having taking into account the applicant’s lack of knowledge in his current and intended course the Tribunal finds the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

24. The applicant submitted to the Tribunal a range of certificates for the certificate and diploma level courses he has completed since arriving in Australia (AAT Folio’s 74, 76b, 78,78b &79b). After completing the Diploma of Management (AAT Folio 76b) in November 2014 the applicant stated to the Tribunal that he did not complete or advance in a course until he started the Certificate III in Commercial Cookery (AAT Folio 74) in March 2017. The applicant submitted to the Tribunal a copy of the certificate for this course dated 6 March 2018.

25. The applicant informed the Tribunal that he currently works 20 hours per week for GNP Enterprises Car Wash as a manager and is paid AUD $620 per week and lives in Keysborough with his cousin and her husband and another housemate and contributes AUD $1100 per month towards the rent and bills. The Tribunal notes that the applicant has worked for a number of car washes and as a kitchen hand since arriving in Australia on 30 July 2009. At the request of the Tribunal the applicant submitted to the Tribunal his taxation estimates and PAYG payment summaries from 2013 through to 2018 (AAT Folio 100b-103).

    a.The 2013 (AAT Folio 103) taxation estimate stated the applicant earned a gross salary of AUD $34450.

    b.The 2014 (AAT Folio 103b) taxation estimate stated the applicant earned a gross salary of AUD $47636.

    c.The 2015 (AAT Folio 102) taxation estimate stated the applicant earned a gross salary of AUD $406.

    d.The 2016 (AAT Folio 102b) taxation estimate stated the applicant earned a gross salary of AUD $21070.

    e.The 2017 (AAT Folio 101) taxation estimate stated the applicant earned a gross salary of AUD $30226.

    f.The 2018 (AAT Folio 100- 101b) PAYG payment summaries stated the applicant earned a gross salary of AUD $27690. The applicant received two PAYG payment summaries in 2018 due to a change in the business ownership.

    Considering the applicant’s earnings between 2013 and 2018 the Tribunal finds that the economic circumstances within Australia of the applicant would present as a strong incentive for the applicant not to return to his home country.

26. The Tribunal gives regard to the applicant’s “Statement in Support of Student Visa Appeal” (AAT Folio 81-83) that mentioned the applicant was married on 16 November 2016 for the second time and that he communicates with his wife on a daily basis through video and voice calls; that he has not seen his current wife since they got married although the applicant has applied for several visas which have been refused; information about his first wife that he divorced in December 2012; that he has not departed Australia on many occasions because he has been focusing on his studies; that he has complied with his visa conditions; a summary of his studies in Australia; the applicant stated that he had completed all of his studies without any study gaps; that all of his family live back in India except for one cousin and her husband who the applicant lives with; that he is the only son and he has to take care of his family; his reasons for choosing the commercial cookery and hospitality courses; that by having Australian qualifications on his return to India he will find it easier to gain employment in a highly paid job; that he is only weeks away from gaining his Certificate IV in Commercial Cookery and then he will start the Diploma of Hospitality Management course and that he hopes to open his own restaurant in the future. At hearing the Tribunal discussed with the applicant about the number of courses he had actually completed since arriving in Australia and what he had submitted was not completely accurate. The Tribunal has difficulty understand why the applicant had not provided an accurate account of the courses he had actually completed and for this reason gives little weight to the submission.

27. The Tribunal acknowledges the submission made by the applicant’s agent (AAT Folio 84-86) that reiterated the information stated by the applicant in paragraph 26.

    We have been instructed that further documents evidencing the Applicant has completed an Advanced Diploma of Management, Certificate IV in Business Administration, Diploma of Business and the Advanced Diploma, have been requested. Once these documents have been provided by the relevant institutions, they will be provided.

    At hearing the applicant admitted that he had actually not completed the courses listed in paragraph 7 of the agent’s submission. The Tribunal has difficulty understanding why the applicant has not been fully honest with his agent and for these reasons the Tribunal is not satisfied that the applicant is a genuine student and a genuine temporary entrant. The Tribunal considers the applicant has maintained enrolment in approved courses to meet the requirements of being granted a student visa and that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

    Value of the course to the applicant’s future

28. The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The applicant said to the Tribunal that the value of his current Certificate IV in Commercial Cookery course that is due to be completed in October 2018 and the Diploma of Hospitality Management course that is due to commence In November 2018 will provide him with the skills required to open a pasta and pizza restaurant near his hometown in India. The applicant further added that he would target the university campus near his home town and that his father knows about his plans. The applicant stated to the Tribunal that he is going to run the entire restaurant including the running of the kitchen and that he hopes to employ around 8 to 10 staff. The applicant believes that when the restaurant is up and running the restaurant will turnover approximately AUD $300 per day. The Tribunal acknowledges that the applicant has carefully considered his plans for the future and the potential financial success of his proposed pasta and pizza restaurant. The Tribunal considers the applicant has achieved the relevant qualifications to put his pizza and pasta plan into action and for these reasons the Tribunal considers the student visa is being used to maintain ongoing residence in Australia.       

29. The applicant reiterated on a number of occasions to the Tribunal that he will depart Australia at the completion of his current course and return to India. The applicant added that he will not be applying for any further visas in Australia and that he will be going back in May 2019 to India. Considering the length of time the applicant has been in Australia and the lack of overall academic progress the Tribunal is not satisfied that the applicant genuinely intends to depart in May 2019 and that he will seek further enrolments to meet the requirements of a student visa. The Tribunal finds that the applicant is not a genuine temporary entrant or a genuine student and that the student visa programme is being used to circumvent the intentions of the migration programme and to maintain ongoing residence in Australia.

30. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service commitment in the home country, political circumstances in the home country, civil unrest in the home country, , circumstances in the home country relative any other country and the applicant’s circumstances in the home country relative to others in that country.

31. 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).

32. 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.

33. 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

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

    M. Edgoose
    Member