KALSI (Migration)

[2017] AATA 2228

KALSI (Migration) [2017] AATA 2228 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MANJIT SINGH KALSI

CASE NUMBER:  1515008

DIBP REFERENCE(S):  BCC2015/1791183

MEMBER:Mark Bishop

DATE:8 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2017 at 6:47pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Not a genuine student – No sufficient incentive to return home – Intention to remain in Australia for employment

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 572.223

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 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 to the Department of Immigration for the visa on 23 June 2015. The delegate decided to refuse to grant the visa on 20 October 2015. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant was a genuine applicant for entry and stay in Australia on a temporary basis.

4. The applicant appeared before the Tribunal on 17 October 2017 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his 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. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

9. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

11. The decision record disclosed the applicant applied for a student Visa in early 2009, this was granted offshore on 21 July 2009 and the applicant arrived in Australia on 3 September 2009. The applicant applied for a new student Visa on 23 June 2015 and this application was rejected on 20 October 2015. There was no evidence to suggest that the applicant had previously travelled to Australia or another country.

12. The applicant advised he had been provided with a copy of the decision record, had read it and understood it. He supplied a copy to the Tribunal.

13. The applicant succinctly summarised the reasons given by the delegate in the decision record for rejecting the application for a student Visa.

14. The tribunal explained to the applicant its job was to take a fresh look at the application and to consider the applicant’s circumstances against those issues in Ministerial Direction Number 53. The Tribunal needed to be satisfied the applicant was a genuine student who genuinely intends to stay in Australia temporarily.

15. The tribunal forwarded correspondence to the applicant on 22 September 2017  requesting he provide 4 different sets of documents - firstly a copy of a current certificate of enrolment, secondly documents that show the applicant is currently enrolled in a course or has an offer of enrolment in a registered course, thirdly documents that show past studies of the applicant in Australia including copies of attendance certificates, academic transcripts and certificates of completion and finally an explanation for any gaps in enrolments.

16. The applicant provided relevant documents in the first three categories above and the Tribunal engaged in a discussion about some apparent gaps in enrolments.

17. The applicant also provided a statement in response to this request from the Tribunal which in part addressed cl.572.223(1)(a).

18. The Tribunal reviewed the evidence relating to the applicant’s study history in India, his work history in India following graduation from what was described as an Australian equivalent TAFE College in mechanical engineering, his enrolment and study in Australia after arrival, his extended work history in Australia and his current enrolment in a Diploma of Automotive Technology.

19. The applicant provided a certificate of graduation in Mechanical Engineering from the LLRM Polytechnic College in Ajitwal (Moga). In response to a query from the Tribunal that this certificate appeared to be the equivalent of Bachelor level degree in Australia the applicant and his agent took some time explaining the certificate related to a three year course in an institution in what would be described in Australia as part of the TAFE sector. Subjects studied in this course including applied maths, applied physics, applied chemistry, thermodynamics, strength of materials, mechanical engineering drawing, fluid mechanics, major project work and the like.

20. Although this course took six semesters over three years the applicant and his agent stressed it was only the equivalent of one and a half years of a bachelor’s degree in the same field in Australia.

21. After graduation from this institution in India the applicant worked for six months firstly as a supervisor in a factory engaged in manufacturing parts for the automotive industry and secondly as a fitter with the same company Bharat International for three years.

22. Since his arrival in Australia in September 2009 the applicant has completed a full eight (8) certificate or diploma level courses. Those courses are in a range of disciplines – business, management, automotive, marketing and automotive technology. The applicant has also partially completed an Advanced Diploma of Marketing and is two units short of a Diploma of Automotive Technology.

23. As well as successfully passing the above range of courses the applicant advised the Tribunal he had been employed on a part-time basis as a fitter since his arrival in Australia in 2009. It was this work that funded the applicant’s long stay in Australia, occasionally supplemented by remittances from his parents in India to pay for fees.

24. The Tribunal put to the applicant on a number of occasions that by the second half of 2015 his post-secondary education in India, his work experience in India as a fitter, his successful passing of business, management and automotive courses in the VET sector in Australia and his long work as a fitter in Australia made him more than qualified to gain meaningful work in India.

25. The Tribunal suggested it was a pertinent time to return home to India and take advantage of his new qualifications and work experience in Australia.

26. The applicant resisted this proposition. He said that after discussions with friends in Australia he had decided he needed qualifications in marketing to operate a successful enterprise in India. In neither his evidence nor statement did the applicant explain why diploma or advanced diploma level courses in marketing were a precondition to opening or operating a successful business in India.

27. The applicant did not provide any other evidence or material supporting the critical importance of diploma level study in marketing being a critical precondition to operating a business in India. As it was the critical element in the applicant’s decision to continue studying in Australia the Tribunal expected more than simply an assertion from friends that marketing was a useful course of study.

28. As outlined the Tribunal has some doubts as to the validity of this proposition. Indeed the applicant’s own work history as a qualified fitter in both India and Australia says the opposite. Further upon examination the applicant conceded he had had significant exposure to elements of marketing, elements of a business plan, and other matters that go to the successful operation of any enterprise. As an alternative even if the Tribunal was inclined to accept that the applicant needs formal marketing qualifications to open or operate a successful business in India, the applicant has since obtained a Diploma in Marketing.

29. The Tribunal was not satisfied with this explanation. In response the applicant emphasised that he had completed a series of business and management courses because he understood that would assist in gaining employment in the automotive management field in India. The applicant explained to the Tribunal that this was a misconception on his part. It was not the case. The applicant asserted repeatedly he needed to gain further qualifications in automotive technology to pursue a career in that field in India.

30. Pressed to explain the importance of a final Diploma in Automotive Technology the applicant explained he wished to pursue now, a career as a mechanical fitter. He wanted to be a motor mechanic. Being a general fitter was not sufficient. The applicant wished to specialise in the automotive field and be a mechanical fitter in a workshop in that industry.

31. The Tribunal accepts this explanation. On a number of occasions the Tribunal enquired as to why the applicant had changed courses, why he had given undertakings as to a particular course enrolment being the last enrolment the applicant would seek and changed his mind and why at critical times it was necessary to achieve further qualifications in diplomas not related to past study.

32. The Tribunal had before it two separate statements from 2015 and 2017 provided by the applicant which specifically addressed this point. In addition the decision record made available to the Tribunal by the applicant addressed these issues at length.

33. In response the applicant advised he had changed courses because prior enrolments had been in error or had been done under a misconception, there was nothing wrong in changing his mind to study further courses and his enrolment in diplomas unrelated to past studies was because of his great passion for studying different fields but his real interest was now in the field of the automotive industry and hence the justification for studying a Diploma of Automotive Technology.

34. The Tribunal notes these varied explanations. The Tribunal has doubts about their absolute truthfulness.

35. Indeed the applicant confirmed the reservations in the mind of the Tribunal when he provided his own written statement to the Tribunal dated 12 October 2017. He said in a written statement to the Tribunal “I have been offered a job as motor mechanic in Melbourne. Once I complete this course, I am going to apply for a work visa and am going to work full time as a motor mechanic”. The applicant went onto make it absolutely clear he wanted to “…start his career as a motor mechanic”.

36. The applicant confirmed his intention to remain in Australia for employment purposes (as per his written statement of 12 October) with the Tribunal at the hearing. In discussions with the Tribunal the applicant advised he had received two offers of employment on an ongoing basis as a fitter with firms in Melbourne. He said the employment was well remunerated, he was on a good wage and it was much more than he could ever expect to earn in India. He advised the Tribunal he wanted to work on a permanent basis in Australia.

37. The Tribunal explained to the applicant that this intent to remain in Australia and pursue a working career as a motor mechanic was clearly matters relevant to cl.572.223 (1) (a). Indeed the Tribunal had also explained this to the applicant at the commencement of proceedings.

38. The applicant by his own statement and in discussion with the Tribunal confirmed he wanted to be a resident in Australia on an ongoing basis so that he could receive a superior wage to anything on offer in India.

39. The Tribunal notes that past plans as to opening, operating or managing a business or automotive enterprise in India are no longer as urgent as previous evidence and statements might suggest. The priority for the applicant is now to finish his Diploma in Automotive Technology, gain employment as a mechanical fitter in Australia and obtain the relevant work visa that permits employment and residency in Australia on an ongoing basis.

40. There is one critical fault in that plan or priority. The Tribunal explained it to the applicant and to the applicant’s agent. It is completely at odds with the intention of a genuine student to reside temporarily in Australia until conclusion of his studies.

41. Such an attitude as expressed in the applicant’s statement voluntarily provided to the Tribunal is completely inconsistent with the relevant criteria. The applicant’s statement is that of a person who seeks to gain employment, earn a good wage, build a career and have residency in Australia.

42. Towards the end of proceedings the applicant explained he had recently married. His wife remained in India and would not be joining him in Australia. She had good employment as a teacher in that country. Ordinarily the Tribunal would conclude that this new marriage is an incentive for the applicant to finish his studies and return home. The Tribunal put this proposition to the applicant. He avoided a direct response. It was not the case. The marriage was not sufficient incentive to return home and be with his new wife in India.

43. The applicant had a good education in India. He was a qualified tradesman. He had successfully completed 8 certificate or diploma level courses in Australia in a range of disciplines. He had almost completed a further 2 diplomas. He had many years of experience as a fitter working in Australia. He has developed a more than useful set of skills and knowledge. He has enjoyed extensive practical experience and acquired considerable acumen.

44. None of this has been sufficient incentive to indicate a desire or willingness to return home to India

45. Instead the applicant made it clear his absolute priority was to gain work as a mechanical fitter or automotive mechanic in Australia. In any event at the conclusion of his studies it was the current intent of the applicant to apply for the relevant work visa, accept an employment offer and reside in Australia.

46. The Tribunal has reviewed the decision record, considered the various statements of the applicant, noted the course progress and relevant variations over time and paid particular attention to the oral evidence and written supporting documentation of the applicant.

47. The Tribunal has considered the circumstances of the applicant as a whole including all of the issues outlined in Ministerial Direction Number 53. The Tribunal has had regard to the applicant circumstances in his home country, the applicant’s actual and potential circumstances in Australia, the value of various courses and in particular the Diploma of Automotive Management to the applicant’s future and has had regard to the personal circumstances of the applicant and his immigration history

48. The tribunal is not satisfied the applicant is a genuine student who intends to stay temporarily in Australia. Therefore the Tribunal finds the applicant does not meet the requirements of cl.572.223(1)(a).

49. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

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

    Mark Bishop
    Member