Jugraj Singh (Migration)

[2020] AATA 2746

Jugraj Singh (Migration) [2020] AATA 2746 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jugraj Singh

CASE NUMBER:  1836962

DIBP REFERENCE(S):  BCC2018/4544052

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 May 2020 at 2:25 pm (VIC time)

DATE OF WRITTEN RECORD:                17 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 June 2020 at 10:18am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entry – incentives to stay or return – visa, study and work history – non-completion of two courses – co-director of company in Australia – contact with family in home country and one visit – value of proposed course to future employment – 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 a decision made by a delegate of the Minister for Immigration on 6 December 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 7 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. This is an oral decision for file number 1836962 for Mr Jugraj Singh.  To be eligible for the grant of a student visa a person must be a genuine applicant for entry and stay as a student having a genuine intention to stay in Australia temporarily.  The applicant must also intend to comply with any conditions subject to which the visa is granted.  This is known as the genuine temporary entrant criterion under clause 500.212.

4. You applied for the student visa on 17 October 2018.  Your application was refused by the Ministerial delegate on 6 December 2018.  The delegate after considering your circumstances, immigration history and other relevant matters was not satisfied that you are a genuine applicant for entry and stay as a student.  The delegate was not satisfied that you intend genuinely to stay in Australia temporarily.  The delegate concluded that they had serious concerns about your true intention in Australia.  They were not satisfied that you had significant incentive to return to India.  That you had not demonstrated substantial economic ties or personal assets there.  And that they formed the view that you were using the student visa program to maintain residence in Australia.

5. You applied to have that decision reviewed by this tribunal.  As explained in the primary decision when considering whether someone is a genuine student it is necessary for decision makers to have regard to the Ministerial Direction number 69.  The issues in Direction number 69 include your circumstances in your home country, potential circumstances in Australia, whether you have incentives to stay in Australia or return home, whether you are using the student visa program to maintain ongoing residence in Australia, the value of your courses to your stated business or career goals, your immigration history and any other relevant matter.  It is not intended as a checklist but as a guide for decision makers.

6. The role of the tribunal is to take a fresh look at your application and consider your circumstances against Direction number 69.  The tribunal sent you an invitation to come to today’s hearing by telephone on 21 April 2020.  That invitation specifically refers to Direction number 69 and you were asked to provide us with a range of information.  A copy of Direction number 69 accompanied the invitation sent to you.

7. In response you provided a number of documents.  This included a copy of your current confirmation of enrolment, a completed section 359(2) questionnaire, a genuine temporary entrant statement, and an enrolment letter confirming your enrolment.  The tribunal has had regard to those documents as well as the oral evidence given at today’s hearing.

8. You arrived in Australia on 19 July 2017 on a skilled recognised graduate visa.  This was valid until 19 October 2018.  You said you entered Australia on this visa because you had completed a Bachelor of Engineering course in your home country.  You came here to gain more skills in that profession.  You had previously been enrolled in two courses in Australia, a Certificate III in Painting and Decorating in October 2018 and a Diploma of Building and Construction Management, which appears that you enrolled in in December 2019 but never commenced.

9. At the hearing you stated that you did not commence these courses because your agent misguided you.  You were told that you could not do the Certificate III course.  As you had no knowledge about student visas you dropped the course.  Coming to today’s hearing you have provided evidence that you are currently enrolled in a Certificate III in Wall and Floor tiling, which commences on 14 May 2020, and a Diploma of Building and Construction course commencing on 15 June 2021, which concludes in June 2022.

10. These studies mean that your time in Australia will be extended by a further four years.  If your application for student visa is granted the total amount of time that you will have spent in Australia on a temporary visa will be five years.

11. You said in your January temporary entrant statement that you want to start your own construction business, this is your plan for the future.  The tribunal now turns to consider Ministerial Direction number 69.  The applicant is a single 27 year-old man from India.  In relation to why the applicant is not undertaking these studies in his home country the applicant said in his questionnaire because he has two years and 10 months’ experience of wall and flooring tiling in Australia and because there is no similar courses available in his home country.

12. At the hearing he said that there are only building and architecture courses in India and there are no similar courses to the Certificate III in wall and floor tiling.  People who do this work simply learn from each other.  The tribunal notes that since arriving in Australia you have worked initially as an employee tiler for over a year and then since 2018 as a self-employed director of your own company working as a tiler.  This business is an incorporated business and you have four other business partners.  You have operated this business for at least a year and a half.

13. Taking into account the experience that the applicant has working in this field and also the applicant’s previous work experience in India working as a supervisor for a construction company and his previous Bachelor of Technical Civil Engineering course, the tribunal does not consider the applicant has sound reasons for not studying in his home country.

14. In relation to his personal ties the applicant said in his genuine temporary entrant statement that most of his family members and relatives are in India.  In his questionnaire you stated that you were in contact with them through phone calls and WhatsApp.  You have returned to your home country once since arriving in Australia.  This was in December last year for 36 days to visit your family and to attend your brother’s wedding.

15. While the tribunal accepts that you have family in India the fact that you have remained onshore in Australia for a lengthy period of time before even commencing your studies demonstrates that you have been able to maintain contact with your family.  The tribunal does not consider that family in your home country are such that they are a strong incentive for you to return home.

16. In your questionnaire you noted that before coming to Australia you worked as a supervisor for a construction company and earned the equivalent of $215 Australian per annum.  That was for a period of six months from December 2015 to June 2016.

17. In Australia you have been working steadily since arriving here.  You were earning between 50 to $60,000 Australian as an employee tiler.  And you clarified at the hearing that as the director and part-time employee of your business you earn approximately $55,000 per annum after tax.

18. You have provided no details of any assets owned by either yourself or your family in India but you have stated that you own a Toyota Camry 2008 model in Australia.

19. Having considered your circumstances the tribunal is not satisfied that you have significant ties to India such that they represent a significant incentive for you to return home at the conclusion of your studies.  Rather your economic circumstances in Australia are a significant incentive not to return to India.  This is given the income you generate as a tiler.

20. You have confirmed in your questionnaire that you have no concerns about military service commitments or political or civil unrest in India.  Accordingly, the tribunal does not consider these matters would induce you to use the student visa to obtain entry to Australia to remain indefinitely.

21. As already noted, in relation to your circumstances in Australia you have held two jobs as an employee tiler and since October 2018 you have operated your own incorporated tiling business.  You clarified at the hearing that there are four partners in this company and that between October 2018 and March 2020 the company generated $400,000 income.  Of this you receive approximately $55,000 per annum after tax.  You said that you met your other business partners through previous work.

22. The tribunal considers that you have established a comfortable working life in the last three years that you have remained onshore.  You have steadily worked and now are the owner and operator of your own business.  You said that you have no friends or relatives in Australia.  Despite your statement that you have no friends or relatives in Australia the tribunal is of the view that you have established a well ordered and well structured life for yourself in Australia.  Starting your own business with business partners is no easy feat and the business is generating a good amount of income for all partners.

23. The tribunal considers that your ties to Australia are reasonably varied and extensive.  The tribunal does not accept that you have no friends in Australia given that you have formed good enough relationships with former colleagues to start your own business.  Your life in Australia appears to be well ordered structured and you have purpose in your life here.  Accordingly, the tribunal is of the view that your ties to Australia are a strong incentive to remain here.

24. The tribunal considers that you are attempting to use the student visa program to maintain ongoing residence here and to circumvent the intentions of the migration program.

25. The tribunal has had regard to your study history and to the value of the proposed courses to your future.  The tribunal is not persuaded that the proposed courses will assist you in improving your employment or remuneration prospect in your home country.  This is because you previously worked in construction in India and you have spent a number of years in Australia already working in the area in which you want to work in if you return to India.  The tribunal considers that your work in Australia is just as useful for you in your stated career goals.

26. The tribunal is of the view that you are using the student visa program to maintain ongoing residence in Australia rather than having a genuine intention to study the proposed courses.

27. The tribunal has considered your immigration history.  It agrees with the delegate’s observations in relation to your immigration history.  You successfully commenced working a self-employed construction worker within one month of your arrival here.  You then enrolled in courses of study two days before your visa was to expire.  The tribunal considers that you have enrolled in the current courses of study to extend your stay in Australia.

28. You have continued working as a tiler for the entire time you have remained in Australia.  You did not complete the first two courses you were enrolled in in 2018 and 2019.  The tribunal does not accept the explanation you provided as to why you did not complete these courses.  By the time that you had enrolled in these courses you had applied already for the student visa.

29. These matters bring into question your intention to return to India.  The tribunal considers this to be evidence of your intention to maintain ongoing residence in Australia.  You have not raised any other relevant matter to be considered.

30. Having considered your circumstances as a whole, including the issues in Direction number 69, I am not satisfied that you are a genuine student who intends to stay temporarily in Australia.  Therefore, I find you do not meet clause 500.212.  It is therefore the decision of the tribunal to affirm the decision under review.

    DECISION

31. The Tribunal affirms the decision under review.

    Elizabeth Tueno
    Member