Gurmeet Lal (Migration)

[2020] AATA 2748

Gurmeet Lal (Migration) [2020] AATA 2748 (12 May 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Gurmeet Lal

CASE NUMBER:  1834799

DIBP REFERENCE(S):  BCC2018/3575619

MEMBER:  Amanda Upton

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 May 2020 at 11:00 am (VIC time)

DATE OF WRITTEN RECORD:                4 June 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 04 June 2020 at 10:55am

CATCHWORDS
MIGRATION - Student (Temporary) (Class TU) – Subclass 500 – not a genuine temporary entrant – 12 years in Australia – completion of number of inconsistent vocational courses – study being used to circumvent migration program – strong incentives to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958

Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 November 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 May 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 20 September 2018. At the time of the application Class TU contained two subclasses, subclass 500 student and subclass 590 student guardian.

4. The primary visa applicant applied for the visa to undertake study in Australia, does not claim to meet the criteria for subclass 590 guardian visa. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations.

5. The applicant has appeared before the Tribunal on 12 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages, although the Tribunal notes that the applicant did not use the interpreter.

6. For the following reasons the Tribunal has concluded that the decision under review should be affirmed. The criteria for a subclass 500 visa are set out in part 500 of schedule 2 to the regulations. The primary criterion under clause 500.211 to clause 500.218 must be satisfied by the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student.

7. In considering whether the applicant satisfies clause 500.212(a) the Tribunal must have regard to direction number 69 in assessing the genuine temporary entrant criterion for student visas regarding his application. The 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 of the applicant’s future, the applicant’s immigration history, including previous applications for an Australian visa or visas to other countries, and previous travel to Australia and other countries, or 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.

8. The direction indicates that the factors specified should not be used as a checklist, but rather intended only as a guide for decision-makers in considering the applicant’s circumstances as a whole in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

9. The applicant in this case is an Indian male who first arrived in Australia on 29 April 2008, he being granted a student visa on 6 March 2008 and since then has held a number of temporary visas. He has been in Australia since April of 2008, 12 years. He told the Tribunal he has returned to India 13 times since being in Australia and that he returns for approximately two months of the year every year. Since being in Australia he has completed Diplomas in Hospitality, Marketing and Advanced Diplomas in hospitality management and leadership, and he is currently enrolled in an advanced diploma of business. The current course will take his time in Australia to a period of just under 13 years.

10. The applicant provided in support of his application his response to a request for information from the Tribunal. He also provided a letter penned by himself evidence of an employment offer to him in India and the relevant documents pertaining to his financial circumstances. The Tribunal has read the documents provided by the applicant and has considered those documents in its decision.

11. With respect to the applicant’s circumstances in his home country the Tribunal has had regard to those as follows: his reasons for not studying in a home country. The applicant accepts that there are courses available, however chooses to stay in Australia because it is the best education system in the world as far as he is concerned. He has special ties to his home country. He has family, his parents and his wife and son reside in India. His son is one and a half years old and he has seen him once since he was born. He speaks to them daily via the internet. It is quite clear that the applicant has significant financial ties to India in the way of family land, a house and further land. There are significant assets both in his family and to him.

12. He works in Australia, he works as a chef and earns approximately $37,440 a year. The Tribunal acknowledges that the circumstances currently are slightly different from what they ordinarily have been. The applicant confirmed that his job, whilst he is not working at the moment he still has his job and he expects to go back there when the circumstances allow it. He has been in that same job since 2015.

13. The applicant raises no concerns about military service or civil and political unrest in his home country. The Tribunal accepts that the applicant has significant personal and financial ties to India that may be an incentive for him to return, although the Tribunal also balances this against the time that the applicant has spent in Australia. He arrived when he was 18 years old and has therefore spent all of his adult life in Australia. The Tribunal considers that his work history constitutes a strong financial incentive to remain in Australia.

14. The Tribunal has had regard to the applicant’s potential circumstances in Australia based on the evidence provided. He has no family in Australia. He does have friends who are here and he has met since being in Australia. He is an only child and does not have any brothers or sisters. He has spent a significant amount of time in Australia and the Tribunal draws the inference that he has a comfortable and settled life, also considering his connection with his employment.

15. With respect to any evidence of the student visa program being used to circumvent the migration program. The Tribunal considers that the applicant completed a number of various short vocation courses. These courses are not consistent with each other, nor are they consistent with the applicant’s stated career goal of opening a restaurant, and prior to that obtaining employment as a chef. The Tribunal acknowledges that the applicant provided a reason being that he was young when he arrived in Australia and did not quite know what he was doing. However it is now approximately 12 years later and he has continued to do short vocational courses.

16. With respect to the applicant’s knowledge of the intended course the applicant has stated in his request for information that he chose the course as he wants to get knowledge of business and the education provider he ultimately chose had a good reputation.

17. The Tribunal considered that the applicant has limited knowledge of the course and course provider and this is an indication that the applicant is not a genuine student. The Tribunal considered that the amount of time that the applicant has spent in Australia infers a settled and comfortable life, particularly considering his connections to his employment. The Tribunal considers that these matters provide a significant incentive to remain, also considering that the applicant has spent his whole entire life in Australia.

18. The Tribunal considers that the completion of the number of inconsistent vocational courses are an indication that the study is being used as a means of circumventing the migration program. The Tribunal has considered the value of the course to the applicant’s future and has noted the applicant has completed a number of courses all at the same vocational level. With respect to whether it will assist him to obtain employment or improve his employment prospects the applicant has told the Tribunal he would like to go back to India and open a restaurant, that he has potentially the land to do so, and he wants his own business related to the hospitality industry. The Tribunal considers that he has experience as a chef in Australia. He said he needs to learn more about Indian cooking and Indian standards.

19. The applicant has provided evidence of a job offer that he says is open to him until December of this year when he returns to India, and that he had done an interview and the hotel, the hotel wants to implement more skills in business. The applicant has indicated he will earn about $3,000 a month doing so.

20. In considering the value of the course to the applicant’s future the Tribunal considers that a genuine student would show greater course progression, particularly given the number of years spent in Australia studying, and the Tribunal takes note of the inconsistency in the courses. The applicant currently works as a chef and has done so for a number of years. He would like to open his own restaurant. The Tribunal acknowledges the applicant’s job offer and that it is contingent on the completion of his advanced diploma of business, however notes the job description is that of a chef and the remuneration is similar to that which he currently can earn in Australia. The Tribunal therefore is unable to conclude that the current course, being the advanced diploma of business, is of value to the applicant’s future when considering his stated career goals, and considers the true value of the course to the applicant as it will extend his stay in Australia.

21. The Tribunal has had regard to the applicant’s immigration history and there is no evidence of visa refusal or cancellations and this is a matter that weighs in favour of the applicant. There are no further relevant matters to consider with respect to the application.

22. 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 clause 500.212(a). Accordingly the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay in Australia as a student as required by clause 500.212. Given the above findings the Tribunal finds that the criteria for the granting of a subclass 500 student visa are not met. The applicant does not claim to meet the criteria for a subclass 590 student guardian visa and accordingly the decision under review must be affirmed, and therefore the Tribunal affirms the decision not to grant the applicant a student visa.

    DECISION

23. The Tribunal affirms the decision under review.

    Amanda Upton
    Member