Kalyan (Migration)

[2018] AATA 3181

Kalyan (Migration) [2018] AATA 3181 (31 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mukesh Kalyan

CASE NUMBER:  1710354

HOME AFFAIRS REFERENCE(S):           BCC2017/94997

MEMBER:Mark Bishop

DATE:31 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 July 2018 at 1:54pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary student criteria – Courses cancelled due to ‘cessation of studies’ – Current course enrolment irrelevant to career history – Comfortable life in Australia – No expressed desire to return ton India Credibility issues – Contradictory information provided to the Department – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), 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 3 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 9 January 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 visa 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 intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

8. 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?

9. 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.

10. 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.

11. The applicant did not provide a GTE statement or written submission to the Tribunal.

12. At the hearing the applicant provided the following documentation:

    ·COE’s in a range of Commercial Cookery and Hospitality Management courses from June 2018 until July 2020;

    ·Course training plan for Commercial Cookery III;

    ·PTE test scores;

    ·Receipt for tuition Bachelor of Professional Accounting Holmes Institute dated 13 march 2017;

    ·Marks from University in India relating to online study dated 25 June 2018;

    ·Partial photocopy of personal details of applicant relating to university enrolment in India;

    ·List of course attendees in a B.A. III (April 2018);

    ·Request to defer/ suspend/cancel a course at Holmes Institute;

    ·Course attendance certificate detail Holmes Institute for period 9 January 2017 until 17 March 2017;

    ·Fee plan Acumen Institute and receipts dated 19 June 2018;

13. The delegate recorded the applicant’s visa history as follows:

    ·He arrived in Australia on 13 June 2016 on a FA Tourist visa granted offshore on 29 March 2016. On his incoming passenger card he stated he the purpose of the visit was as ‘visiting friends or relatives’;

    ·He subsequently applied for English for Academic Purposes  and a Bachelor of Professional Accounting;

    ·The applicant provided contradictory information to the Department. He stated he could obtain promotion in his job after  he provided a letter of resignation from his job to his company;

    ·On 9 January 2017 he applied for a student visa;

    ·On 3 May 2017 this application for a student visa was rejected by the delegate;

14. In evidence the applicant advised the Tribunal that successive enrolments in a Bachelor of Professional Accounting and a Diploma of Leadership and Management from March 2017 until May 2018 were cancelled by the education provider after the applicant advised ‘cessation of studies’. The applicant came to Australia for a visit. The applicant advised he did not do any study in Leadership and Management and his COE was cancelled soon after the scheduled commencement date. The applicant advised he attended courses in his Accounting degree but discontinued study after four months.  Thereafter his COE in this course was also cancelled.

15. The applicant advised the Tribunal that in the period March 2017 until May 2018 he studied for four months as outlined above in paragraph 14. Thereafter from August 2017 until May 2018 the applicant advised he did not engage in any study in an approved course. The applicant advised he lived in Clayton South from August 2017 until May 2018. The applicant advised he did not do any study and was not enrolled in any approved course in Australia. The applicant advised the Tribunal that he sometime engaged in private study at home in this period.

16. The applicant provided a written statement to the Department. It outlined the following:

    ·He completed senior secondary education in 2001 in India. He enrolled in Bachelor of Arts (Humanities) but withdraw after admission due to family circumstances;

    ·In 2002 he worked as a Field Officer for almost 3 years at Beniwal Associates (finance collection company);

    ·He worked at a famous Non-Banking Financial Company for 3 and half years. He received the ‘best performer award’;

    ·He has a strong desire to complete further education to grow professionally and get good promotions;

    ·He “…travelled to Australia after some research, suggestions from friends & family” decided to study a Bachelor of Business (Accounting) at Holmes College;

    ·He realised he can achieve dream of pursuing higher education and wants to study Bachelor of Business (Accounting)) at Stott’s College because the course relates to his previous sales and finance experience;

    ·He advised Australia had always been a dream destination to study,  he was lucky to explore the city as a tourist and after some travel decided to pursue further education;

    ·He advised studying business in Australia will help him achieve professional goals;

    ·He intends to return to India after completing studies and work at a “good company as better position and experience”.

17. The applicant provided to the Department copies of a number of letters that outlined his employment career as a sales executive, field officer, marketing executive and senior field officer. These documents outlined his salary and effective appointment and resignation dates from 2002 until 2016. 

18. Documents provided by the applicant to the Department showed his annual salary in India from 2002 until 2016 was in the range $A1,770 per annum in 2006 up to $8,270 per annum in 2016. The applicant advised his monthly salary was around $800 per month in India. The applicant advised his income and standard of living in Australia was much higher than in his home country.

19. The applicant advised the Tribunal he had completed a 12 week course in English for Academic Purposes in March 2017.

20. The applicant provided COE’s for enrolment in a package of Hospitality related courses. All COE’s were dated 5 June 2018.  Only one COE provided evidence of a pre-paid tuition fee of $300 out of a total cost of $15,500.  During the hearing the applicant provided a further receipt of payment of fees for $450 and $675 for enrolment in a course at Acumen Education. The applicant advised he had not paid any further fees. The courses were low cost and short duration.

21. The delegate recorded the applicant’s visa history as follows:

    ·He arrived in Australia on 13 June 2016 on a FA Tourist visa granted offshore on 29 March 2016. On his incoming passenger card he stated he the purpose of the visit was as ‘visiting friends or relatives’;

    ·He subsequently applied for English for Academic Purposes  and a Bachelor of Professional Accounting;

    ·The applicant provided contradictory information to the Department. He stated he could obtain promotion in his job after  he provided a letter of resignation from his job to his company;

    ·On 9 January 2017 he applied for a student visa;

    ·On 3 May 2017 this application for a student visa was rejected by the delegate;

22. The applicant advised the Tribunal that successive enrolments in a Bachelor of Professional Accounting and a Diploma of Leadership and Management from March 2017 until May 2018 were cancelled by the education provider after the applicant advised ‘cessation of studies’.

23. The applicant advised the Tribunal that in the period March 2017 until May 2018 he had not engaged in study and did not work in Australia. He advised the Tribunal he continued his residence in Australia during this entire period. The applicant advised he could not provide any evidence of work or study in this period. The applicant advised he remained at home and engaged in private study.

24. The Tribunal now has regard to Ministerial Direction number 69 (MD69).

25. The Tribunal has regard to Cl. 9 and 10 of MD69 the applicant’s potential circumstances is his home country.

26. The Tribunal asked the applicant why he had not pursued study in his home country. The applicant advised he had been working for many years in India in progressively more senior positions. He advised he came to Australia because he sought to gain a Certificate of Graduation in something to prove to his family he was a person of success. He advised the course content and study requirements were hard and very different to his experience in his home country. The applicant did not provide any evidence of research concerning the education system in Australia or examination of study requirements and course obligations. The applicant advised entry into educational institutes in India was difficult. In examination the applicant advised he had nearly completed all requirements for conferment of a Bachelor degree in India.

27. The applicant advised his parents were still alive and he had seen his wife and son on one occasion since coming to Australia. The applicant advised his parents were wealthy, owned agricultural land and had investments in a number of schemes or enterprises (unregistered) that provided an income stream. The applicant advised he was well off in India and did not own any property or assets in his own right. He advised he did not have any military service commitments and was not aware of any political or civil disturbance in India.

28. The applicant did not explain or give any reasons why he could not study Commercial Cookery or Hospitality Management courses in India. He did not advance any reasons for not undertaking study in his home country. When the Tribunal asked why he wanted to study Commercial Cookery in Australia after having been in this country for two years he responded by saying he liked cooking. The Tribunal acknowledges the applicant’s immediate family reside in India. Ordinarily this would present as a significant incentive to return to the home country. The applicant did not express any desire to return to India in the short or medium term. He did not express a desire to return to India to be with his wife and child. In this case the applicant has been continuously resident in Australia since January 2017, visited India on one occasion only and not engaged in either study or work for extensive periods. The Tribunal is unable to discern a sound reason for not undertaking study in Commercial Cookery in India. The Tribunal is unable to conclude the applicant’s personal ties to India serve as a significant incentive to return to his home country. The applicant provided detail of his wages history in India as outlined in paragraph 18 above. The applicant advised of significant family wealth in India. The applicant advised his standard of living and income in Australia was superior to that on offer in India. The Tribunal concludes the applicant’s economic circumstances present as a significant incentive for the applicant not to return to India.

29. The Tribunal has regard to Cl. 11 of MD69 the applicant’ potential circumstances in Australia.

30. The applicant advised he lives with family in Clayton South. He advised his family in Australia support him with respect to all of his needs. The applicant advised he was an active member of the Indian community and attended temple (Mandir) on a regular basis. He advised he played sport and socialised regularly and extensively with his two brothers-in-law and other friends in Melbourne. The Tribunal tends to the view the applicant has established a well-ordered life since arrival in Australia. This life involves family, friends and community participation. The applicant advised he had not studied for lengthy periods and not engaged in work whilst in Australia. The Tribunal is inclined to the view the applicant’s ties with Australia present as a strong incentive to remain in Australia. Those ties extend to family, family support and community engagement. The Tribunal is inclined to the view the student visa program is being used to circumvent the intentions of the migration program and the student visa is being used primarily to maintain ongoing residence.

31. The Tribunal has regard to Cl. 12 of MD69 the value of the course to the applicant’s future.

32. The applicant advised he had completed most of his undergraduate units at a university in India. The applicant provided extensive detail as to his career and salary over a 14 year period in commercial industries in India. The Tribunal pressed the applicant why he had chosen to study Commercial Cookery after a period of residence in Australia. He advised he liked cooking and he might open a restaurant or street shop in India. The applicant did not provide any detail as to a business plan or any of the customary preparations inherent in establishing a business enterprise. The Tribunal asked the applicant why he had not enrolled in a Commercial Cookery course sometime after August 2017. The applicant advised the Tribunal he wished to stay at home and not do anything. The applicant advised he had nearly completed his Bachelor level degree and prior to coming to Australia had a successful career in the commercial world. The Tribunal is of the view the applicant is seeking to enrol in VET level courses that is not consistent with his current level of education. The applicant did not advise completion of the Commercial Cookery course would assist to obtain employment or improve his employment prospects in India.

33. The Tribunal has regard to Cl 13 and 14 of MD69 the applicant’s immigration history.

34. The applicant did not respond to questions about his immigration and visa history. The applicant declined to provide a written response to questions about his immigration history. The applicant declined to provide a written response to questions concerning applications for permanent visa to Australia or other countries.

35. 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).

    Conclusion on cl.500.212

36. 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.

37. 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

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

    Mark Bishop
    Member