Kataria (Migration)

[2017] AATA 2326

Kataria (Migration) [2017] AATA 2326 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gagandeep Kataria
Mrs Neha Kataria
Master Ryaan Kataria

CASE NUMBER:  1613620

DIBP REFERENCE(S):  BCC2016/2051471

MEMBER:Jennifer Cripps Watts

DATE:30 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 30 October 2017 at 10:54am

CATCHWORDS

Migration – Student (Temporary)(Class TU) visa – Subclass 572 – Not enrolled in course of study – No offer of enrolment – No academic progress beyond VET courses – Future career plans irresolute – Stronger ties to Australia – Not genuine student

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cls 572.223, 572.223(1)(a), 572.322, r 1.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 15 June 2016. The delegate decided to refuse to grant the visas on 8 August 2016. 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).

3. 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).

4. In the present case, the delegate assessed the first named applicant (the applicant) against the criteria for a Subclass 572 visa on the basis he satisfied the requirements for assessment against that visa subclass. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

5. On 3 October 2017, the applicant was sent an invitation to the Tribunal hearing.  It was requested in the letter than he provided the following information:

   a.A copy of his current Certificate of Enrolment (COE) or other document/s that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994, as is required for the grant of a student visa, and

   b.Documents that show his past studies in Australia, including copies of all his attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia,

   so the Tribunal can assess whether he is a genuine applicant for entry and stay as a
   student (which was the reason for the delegate’s decision).

6. The applicants appeared before the Tribunal on 27 October 2017 to give evidence and present arguments. The Tribunal received oral evidence from the primary visa applicant and his wife.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

9. 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)     …

10. 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.

11. 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.

    Background

12. The primary applicant was granted a subclass 572 student visa on 11 July 2007 and arrived in Australia for the first time on 11 July 2007.  He has returned to India on two occasions, for one month in 2009 and two months in 2013, when he returned to India to get married to the second-name applicant, Neha Kataria.  Neha Kataria first arrived in Australia in 2013.  She gave birth in Australia to their son, Ryaan, in July 2015 and in the same year returned to India for about five weeks with Ryaan to visit the grandparents.  The applicants are all Indian citizens.

13. The applicant has departed Australia and returned to India on only two occasions, for a total of three months, in over 10+ years.  The second occasion, in 2013, was to get married and bring his wife (the second named applicant) back to Australia to live with him.  At that time, he had been a student in Australia for six years.  The Tribunal has had regard to the evidence and is not satisfied that the applicant is a genuine temporary entrant for this and other reasons, discussed below in this decision.

14. In response to the Tribunal’s invitation to attend the hearing and request for additional information, the applicant provided the Tribunal with a typed written statement on the day of the hearing and documents showing his academic achievements.  The Tribunal has read and considered these documents when making findings.  Referring to the applicant’s personal statement, essentially the statement gives a chronology of the applicant’s study from 2007 to date.  Since arriving in 2007, he has held student visas or associated bridging visas.  It is acknowledged that when he has been onshore, he has been onshore lawfully at all times.  He has given the following history:

    a.Arrived in Australia in July 2007, enrolled in a Diploma of Hospitality Management and Certificate IV in Hospitality (commercial cookery) at the Holmes Institutes Melbourne and commenced his study in 2007 and completed the courses by April 2011.

    b.The main purpose of commencing the study in July 2007 was to handle his family business in his home country, related to catering and hospitality management.

    c.The next course was a Diploma of Business Administration at Pacific College of Technology in Sydney which he completed in April 2012.

    d.In September 2014, he completed an Advanced Diploma of Accounting at Pacific College of Technology in Sydney.

    e.After completing this, he enrolled in an Advanced Diploma of Management at Pacific College of Technology Sydney.  He finished that course in April 2016.

    f.He has tried on several occasions to gain admission to a higher level of study, but did not satisfy the English language requirements.  He gave evidence that he sat the IELTS test 11 times and has now passed the test at band 6 level.

    g.He took coaching from two different institutes over the last year to help him pass the IELTS test.

    h.After he finished his course in April 2016, as he did not have band 6 English, he says the college advised him to enrol in an Advanced Diploma of Network Security, which he says they told him was related to his previous courses.

15. On the basis of his enrolment in the Advanced Diploma of Network Security, the applicant applied for a further student visa and it was refused on 8 August 2016 because the Department was not satisfied he was a genuine temporary entrant and the course enrolment was subsequently cancelled. 

16. At the time of this decision, the applicant provided no documentary evidence that he is enrolled in a course of study or has an offer of enrolment.  He was asked at the hearing what his intention is.  The applicant said that now he has passed the IELTS test, he wants to study a bachelor degree in accounting.  He said he had passed the IELTS test, after sitting for it 11 times, in July 2017.  He said that since his visa was refused in 2016, he has been having coaching.  He was asked if he is currently enrolled in a course and said he isn’t, because when he went to the college they told him that they could not give him admission because he has a gap in his studies.  He said they told him to first get IELTS and then come back.   

17. The Tribunal requested, in writing, when the hearing invitation was sent on 3 October 2017, that the applicant provide evidence of enrolment in a course or an offer of enrolment.  He did not provide this evidence and, when asked at the hearing, told the Tribunal he is not enrolled and does not have an offer of enrolment.  He did provide a personal statement and evidence of his academic transcripts and certificates of completion through to April 2016. 

18. The applicant said at the hearing that he would be happy to provide his 2017 IELTS test result.  He said he would provide it no later than Monday 30 October and the Tribunal granted him the opportunity to provide the information.  The applicant has provided the Tribunal with copies of 10 PTE Academic test taker score reports, dated from September 2015 to June 2017, with overall scores ranging from 40 (in September 2015) to 53 (in June 2017).  Six of these tests were done after his visa application which is the subject of this review.

19. The Tribunal has considered these documents and accepts, on the face of it (relying on the copies of the reports provided by the applicant) that, on 29 June 2017, the applicant achieved an overall score of 53.  The Tribunal does not consider this to be evidence that the applicant has been studying to a level that would satisfy the Tribunal, or lend weight to the claim, that he is genuine temporary entrant, in the circumstances of his case.

20. Since arriving in Australia, the applicant has not completed any courses above the VET level and while the Tribunal accepts that the reason for this, at least partially, was because of his lack of English language proficiency and inability to gain admission to a higher level of study, the Tribunal does not accept that the course in Network Security that he enrolled in in 2016 was related to his studies in hospitality, in the circumstances.  He says that when the visa was refused in August 2016, a friend gave him advice that he should stay in Australia and apply for a bachelor course, which he says he has tried to do.  He has been unsuccessful, on his evidence, because of his lack of English language proficiency and because of what the college described as a gap in his study.  He claims he had some coaching after his visa was refused.  Although he provided the PTE test scores documents, he did not provide evidence of any coaching.

21. The applicant has, since arriving in Australia in 2007, been studying hospitality or hospitality and business administration courses for nearly nine years at the time of application and has not progressed academically from VET courses to a higher level of education during that time. 

22. The visa was refused by the Department before he had passed IELTS band 6 (which he claims now to have done) and the applicant wishes to have his student visa granted so that he may now study for a bachelor degree in accounting.

23. The applicant told the Tribunal that he gets financial help from his parents when he needs it and that the reason he wants to complete his study is not for the purpose of trying to achieve permanent residency but to be better qualified and provide a better future for his family.  There was no evidence provided to the Tribunal of the financial help the applicant says his parents provide to him. 

24. The applicant told the Tribunal he works only 13 to 14 hours a week and says it is difficult to manage his home expenses because he has a family.  The second named applicant said she does not work or contribute financially to the family’s living costs.  The applicant said they live with a friend Amandeep and they pay him $280 a week.  On this evidence, the Tribunal would be sceptical that the applicant will be able to continue to support his dependent family and pay his fees working 13 to 14 hours a week.  He has provided no evidence of any other actual or planned financial support that would see him through to the end of the bachelor degree.

25. The applicant was asked about the family business in India, at the hearing.  He said the business is currently run by his father and cousin, the name of the business is National Tent House and Catering and that the business has been going for 25 years.  No reliable evidence has been provided about the family business and the role the applicant might have in it if he returns to India.  There is no evidence before the Tribunal that the applicant has ever worked in the business.  It is reasonable to think he might have, if his claim that he intends to work there in the future is genuine.   

26. The applicant is now 35 years of age.  He has lived in Australia, studying and working, since 2007 – he came here when he was 25 years of age.  He has, on the Tribunal’s reckoning, lived and worked in Australia for more than half of his adult life and this does not demonstrate to the Tribunal that he is a genuine temporary entrant.  His ties to his home country are, in the view of the Tribunal, somewhat diminished by the fact that in 2013 he returned to India, married the second name applicant and they now have a baby and all live in Australia.

27. The Tribunal has considered all facts and matters and formed the view that the applicant has now had more than ample time, over 10 years, to complete his studies to a level where he might reasonably be expected to be able to either take over running his family’s catering business in India or get a job in India.  He has claimed that he is the only one to take care of his parents in India.  However, he has seen them twice in 10 years and the Tribunal does not accept this as a genuine claim.

28. The applicant claims he will go back to India when he completes the bachelor course he wishes to enrol in.  The Tribunal is not persuaded, on the evidence, that he genuinely intends to return to India or considers his time in Australia to be temporary.  The Tribunal’s view, formed after considering all the evidence, is he enrolled in the course that he was assessed for in the visa application (Network Security) merely to wait until he could enrol in a higher level bachelor course to extend his time onshore.  The Tribunal has concluded, on the evidence, that the applicant is using the student visa program to remain onshore.

29. The plans the applicant has for returning to India appear to the Tribunal to be somewhat irresolute.  The applicant claimed at the time of application (2016) he needed to study the Diploma of Network Security to expand his business on a large scale and said, when he made that application, that when he finished he would return to India, indicating to the Tribunal that he thought the qualification would equip him to run his family business or secure employment in India on the completion of that course.  The visa was refused and he did not finish the Network Security Course.  The applicant says he now wants to study a bachelor degree in accounting to manage business on a large scale.  The enrolment in the accounting degree, if his visa is granted and if he finishes the course, will mean that since arriving in Australia he will have been a student for more than 11 years, which is, in the view of the Tribunal, an excessively long time to obtain a qualification in accounting.

30. The applicant has provided little evidence of actual ties to his home country, other than stating his parents live there and that he intends to go back and manage his father’s catering business.  He says he is one of three children.  He said one sibling lives in Canada and the other, a sister, lives in Australia, is a permanent resident and is married with a child.  The Tribunal’s view is that the applicant is likely more motivated to remain in Australia where he has a wife, a child, a sister, a brother-in-law and a nephew or niece.  The applicant has provided no reliable evidence, in the view of the Tribunal, that he actually intends or wants to return to India.

31. When making the findings above, the Tribunal has had regard to matters in Ministerial Direction 53, but has not given undue or unreasonable weight to these factors.

32. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant does not meet cl.572.223(1)(a).

33. 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.

    Member of Family Unit – secondary visa applicants

34. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria which require that they be members of the family unit of a person who satisfies the primary criteria: relevantly cl.572.223.  Member of the family unit is defined in r.1.12 and includes spouse or de facto partner, dependent child and relatives of the family head or spouse of the family head who does not have a spouse or de facto partner and is usually resident in the family head's household and is dependent on the family head.

35. As the Tribunal does not accept that the first named visa applicant satisfies the primary criteria, the secondary applicants do not meet cl.572.322 because they are not members of the family unit of, and made a combined application with, a person who satisfies the primary criteria.

    DECISION

36. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Jennifer Cripps Watts
    Member