Harpreet Singh (Migration)

[2018] AATA 4740

Harpreet Singh (Migration) [2018] AATA 4740 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Harpreet Singh
Mrs Amandeep Kaur
Master Arzoy Singh

CASE NUMBER:  1700751

DIBP REFERENCE(S):  BCC2016/3503209

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          14 August 2018 at 4:44 pm (VIC time)

DATE OF WRITTEN RECORD:                19 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant criteria – completed a range of unrelated courses –vague career plans – use of visa program to maintain residency – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 29 December 2016 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 14 August 2018 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. MEMBER:  Mr Singh, the situation is to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations. 

4. You applied for a student visa on 21 October 2016. Your application was refused on 29 December 2016 because having considered your circumstances, the delegate was not satisfied you met the genuine temporary entrant criteria and would return to India at the end of your proposed stay in Australia and therefore did not satisfy clause 500.212.

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. To satisfy clause 500.212, an applicant must be both a genuine student and a genuine temporary entrant. To be a genuine student you must be engaged in and applying yourself to a meaningful program of study, progressing academically down an identifiable path.

7. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, it is necessary to have regard to what is known as Ministerial Direction No. 69 and the issues in that direction.

8. They were detailed in the primary decision and they include your circumstances, the value of your course to your future, your immigration history, your incentive to stay in Australia or return home, if you are using the student visa program to maintain ongoing residence in Australia and any other relevant matters. 

9. It is not intended as a checklist but as a guide for decision makers to weigh up an applicant’s circumstances as a whole in reaching a finding about whether an applicant satisfies the genuine temporary entrant criteria.

10. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction 69 and be satisfied you are a genuine student who intends to stay in Australia temporarily. 

11. You told the Tribunal you had read and understood the primary decision which we read from today and discussed in some detail.  That primary decision and its detailed references to the genuine temporary entrant issues in direction 69 put you on notice of the issues in your case.

12. Given it was the reason that your application was refused in the letter with the hearing invitation, we told you we would assess whether you met the genuine temporary entrant requirements and we asked you to provide a statement addressing the issues in Direction 69 and we provided you with a copy of that direction.

13. Your agent provided a brief statement that cursorily addressed the issues, however at today’s hearing you have answered a number of questions that went to those issues. 

14. You were asked to provide a range of evidence including evidence of past studies, evidence of current enrolment and an explanation of any gap of studies.  There is no evidence of your current enrolment but you told me and I accept that you are enrolled in studying an Advanced Diploma of Management and Human Resources. 

15. From our discussions at today’s hearing and evidence on file, having been here for almost 10 years, your study history includes you having studied a

    ·Certificate IV in Spoken and Written English,

    ·Certificate III in Printing and Graphic Arts,

    ·Diploma of Multimedia,

    ·Diploma of Management,

    ·Certificate IV in Business,

    ·Diploma of Business,

    ·Diploma of Marketing,

    ·Advanced Diploma of Marketing,

    ·Diploma of Human Resource Management ,and now

    ·Advanced Diploma of Management and Human Resources that you are currently studying.

16. You have been enrolled in and studied a range of short, unrelated, relatively inexpensive courses and you say it is your plan to return home and open a small printing business in India. 

17. When we discussed the printing business that you intend to open and I say what is it going to do, you take some time to say, you know, print cards and things.  When I ask you what is it going to cost to setup this business, you say about $40,000 AUD and I ask what makes up the $40,000, you say, purchasing a shop, employing two staff which you say is all you will need, a couple of printing machines, some furniture and a bit of advertising. When we cost those items we come up to $50,000 and we certainly haven’t covered all the expenses you would face.  So it is apparent that you have not created a business plan or thought about the details of your business and your studies are not guided by a considered business plan.

18. However, when I say to you, we have blown the budget and this is only a small business and ask why you would you need the training you say.  “You know, we will open a few of them.”  Well, I do not believe that is a feasible answer and the Tribunal does not believe that the plan to start such a small business, warrants the financial outlay of two years study of human resources.

19. The Tribunal finds your study is not motivated by academic progression or skills that can add to your business but rather it is an attempt to use the student visa program to maintain residence in Australia.

20. You came to Australia in June 2008, having finished high school, to study courses that would allow you to open a printing business, studies that would normally take three or four years at a maximum. 

21. You have now been here 10 years and as I said, you have completed a range of short inexpensive and mainly unrelated courses.  When asked why you do not do your intended studies at home, you provide no satisfactory answer saying, “Well, I have come here to Australia to study, international study is good.”  You are requesting to stay until at least January 2019, bringing your total time in Australia on temporary visas to more than 10 years.

22. While I accept that some educational and career pathways require extensive study, I am not satisfied you have established that your future goals fall into this category.

23. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident but believes you are seeking to use the student visa program to maintain residence in Australia.

24. You told the Tribunal you have been employed as a taxi driver for the last five or six years and your wife who lives here with you is a civil engineer and has worked for a company building homes for the last one and a half to two years.

25. As I said, when we asked about your future business you were not able to provide any legitimate plans or costings which leads the Tribunal to find you do not have a business plan guiding your study.  As stated, the Tribunal does not believe your studies are guided by a business plan and does not believe that studying HR for two years for a business that is going to employ two people is relevant, or that your studies will provide you with greater or more relevant skills that you have already achieved in the number of short courses that you have completed.

26. While you have family back home in terms of your parents and your sister and your son which may provide some incentive to return, you certainly appear settled in Australia with your long history of work and your wife’s history of work and the fact that you have a brother and a sister who live in Australia who you tell me are permanent residents. 

27. So while you say it is your intention to return home, having been here for 10 years, you now seek to remain longer.  Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history.

28. Having considered your circumstances as a whole, including the issues in Direction 69, I am not satisfied you are a genuine student who intends to stay temporarily in Australia,  therefore I find you do not meet clause 572.223(1)(a).  It is therefore the decision of this Tribunal to affirm the decision under review and this decision was made at 4.44 pm Eastern Australian time on 14 August 2018.

    DECISION

29. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member