Kaur (Migration)

[2018] AATA 3335

Kaur (Migration) [2018] AATA 3335 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jasbir Kaur
Mr Ramandeep Singh
Master Agam Singh

CASE NUMBER:  1810852

HOME AFFAIRS REFERENCE(S):           BCC2018/778621

MEMBER:Warren Stooke AM

DATE:20 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2018 at 2:19pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant criteria – Unrelated course enrolments – Returned to home country once in 9 years – Overriding objective to obtain permanent residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311

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 Home Affairs on 4 April 2018 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 for the visas on 16 February 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas 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 applicant was determined not to be a genuine temporary entrant for stay and study in Australia after nine years of study; having only departed Australia for a period of 140 days in that period and the questionable value of the courses studied relative to the applicant’s stated future objectives to own and operate a restaurant.

4. The applicants appeared before the Tribunal on 4 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were assisted in relation to the review by their registered migration agent.

6. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

7. At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 4 April 2018, a copy of which was provided to the Tribunal by the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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. The issue in the present case is whether the applicant is a genuine temporary applicant for entry and stay in Australia as a student.

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

10. 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.

11. The applicant is a 32 year old from India, who arrived in Australia on 15 May 2009 for the purposes of study and according to the delegate’s decision was the holder of a Bachelor of Arts degree from Guru Nanak Dev University at the time of entry.

12. The applicant gave evidence that she has two dependents, being her husband and 7 year old son and they live in a share house in Preston, where the son attends South Preston Primary.

13. The applicant gave evidence that she works part time in a restaurant, as a chef, where she is paid $867 per week and part time at Aldi, where she is paid $350 per week. The applicant advised that her husband drives a taxi for 5 days a week and earns between $1200 and $1500 per week. A copy of the Australian Tax Office Assessment for the year 2016-17, submitted by the applicant, showed earnings of $65,362 for that assessment period. [Tribunal Folio 48].

14. The applicant stated that she can use the money when she goes back to India, which she claimed would be at the completion of her course, which commenced on the 18 June 2018 and is scheduled to be completed on 4 June 2019. The applicant stated – “study is my passion”.  She advised the Tribunal that it had been 5 years since she studied for her Diploma and that she wanted to learn new ways to learn business.

15. The Tribunal notes, as outlined in the delegate’s decision, that the applicant has engaged in unrelated and repetitious studies that have included hairdressing, cookery, hospitality, management and business and the Tribunal notes that the applicant after 9 years has not progressed beyond the VET sector course level despite having a degree prior to her arrival in Australia.

16. The applicant also gave evidence that she has applied for a Skilled – Nominated Subclass 190 visa. She stated that she needed to apply and that Immigration is very hard and I am not sure of my future. She also stated - “I am not sure with the PR – no chance to get PR.. I am a chef here and I want to stay with that. I can run my own business.”

17. The applicant gave evidence that she was considering a business plan to open her own business.

18. The applicant also gave evidence that her aspiration was to open a restaurant and continue study. In this regard, the applicant gave evidence that she is prepared to invest $1.0m in a restaurant in India and that her father will do everything. The Tribunal asked what return she would expect for this investment and she stated that initially she would expect $20,000 to $30,000 and once the business is established $50,000 to $60,000, which the Tribunal confirmed with the applicant would be a return on investment of 5-6%.

19. The applicant gave evidence that her father in India is a property dealer and that she has two brothers. The applicant also confirmed to the Tribunal that she does not have any family in Australia other than her immediate family.

20. The Tribunal asked the applicant if she was using the student visas to remain in Australia and she stated – “No”.

21. The Tribunal notes from the delegate’s decision that the applicant had been onshore for a period of 3059 days as at the time of the delegate’s decision and had return to India for a total of 140 days. The applicant confirmed to the Tribunal that she had not returned to India in the period since the delegate’s decision and up to the time of hearing.

22. The applicant gave evidence that she would not have any difficulty in assimilating back into India and that there is no reason that would preclude her from returning to India. In this regard, the applicant stated – “There is no any other reason”.

23. The Tribunal asked the applicant if it was her motivation to stay in Australia permanently and the applicant responded – “No. Though I could make my future here, but my father said come over here and make my future.”

24. The representative declined the opportunity to make a submission.

    Does the applicant intend genuinely to stay in Australia temporarily?

25. 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.

26. 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.

27. Based upon the evidence, the Tribunal has concerns that the applicant does not intend to stay in Australia temporarily for the following reasons:

    a.The applicant has been Australia for a period of more than 9 years and has been granted several visas in different streams, which appear to be for the purposes of maintaining residency rather than pursuing a genuine course of study progression to support a future career or business objective. In this regard, the applicant has achieved an appropriate skill set to pursue her chosen career without indulging in further study.

    b.Further, The Tribunal finds that the applicant and her husband, whilst on a Bridging Visa, have had the opportunity to engage in full-time work, which has provided significant earnings relative to what is potentially available in India. In this regard, the real wage of a low skilled worker in Australia when compared with India was US$63,900 to US$10,900. The Tribunal regards the earnings provided in evidence of $65,362 by the applicant alone, demonstrates the significant access to income in Australia relative to that which would be available in India. [1];

    c.The applicant has not demonstrated strong ties to her home country with having only departed Australia for a total period of 140 days in 9 years. It is evident that the economic benefit of earning money in Australia and maintaining a lifestyle in Australia outweighs on balance any incentive to return to India;

    d.The applicant had obtained graduate status in India but has made no attempt to academically progress beyond the VET sector, where it is evident that she has maintained access to low cost courses of short duration;

    e.The applicant has transitioned from hairdressing to cookery and then onto hospitality, business and management. This pattern of behaviour is inconsistent with the stated purpose of stay and study and the expectation that a student would pursue a defined career path based upon a coherent stream of study courses. In this regard, there is no obvious synergy between hairdressing and cookery and the business related courses. Also, the Tribunal finds that with the significant course repetition of business and management subjects, that attract allowable credits, there is a suggestion that the applicant is pursuing convenient course content to maintain residency rather than for the purposes of a genuine interest to complete studies and return to India to pursue her career and business objectives;

    f.The Tribunal considers that the evidence of the applicant demonstrated that she has an over-riding objective to obtain permanent residency in Australia, which is evidenced by her failure to return to India once completing her studies. Additionally, the applicant, whilst not precluded from applying for a Skilled – Nomination Subclass 190 visa, which she advised in evidence, has demonstrated by this action that she is not a genuine applicant for the entry and stay as a student and that the return to studies after a period of 5 years, to pursue more of the same studies, collectively indicate that the purpose is to maintain residency. The applicant has not satisfied the Tribunal that she is genuine applicant for entry and stay as a student ;

    g.The evidence provided by the applicant regarding a future business interest in India, with a $1.0m investment and an ultimate return on investment of between 5% and 6%, appeared to be dubious to the Tribunal, as no substantive material was produced to support this claim

    [1] WageIndicator Foundation (2017). Living Wages Around the World

    Ministerial Direction No. 69

28. The Tribunal has considered the applicant’s home country circumstances and is satisfied on the weight of the evidence that there are no reasons provided by the applicant that would preclude the applicant from returning to her home country.

29. Further, the applicant has confirmed in evidence that she has only returned to India for a total period of 140 days since arriving in Australia in May 2009. As such, the Tribunal finds that the applicant has not maintained connection with her home country and has been using the study visa system to maintain residency in Australia rather than for the purposes of study. This view is also supported by the lack of academic progression and the financial earrings accessed by the applicant and her spouse relative to the economic circumstances for earrings in India, which the Tribunal regards as a disincentive for the applicant to return to her home country.

30. The Tribunal finds that the applicant has a supportive family in India and based upon the evidence has no advised reason, as to any issue with assimilating back into that community nor any reason that would preclude a return to the country. Further, the Tribunal is not satisfied that with the significant economic opportunities in Australia and her family’s current economic earning power here in Australia that there is a strong incentive to return to India and that the converse applies.

31. The applicant after more than 9 years in Australia has not shown any academic progression and in the Tribunal’s view has been using the series of visas that have been granted to support work tenure, which ordinarily would have to be obtained through the various visa streams designed for that purpose.

    Conclusion on cl.500.212

32. 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).

33. 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.

34. On the basis that the Tribunal finds that the applicant has not satisfied the cl.500.212 the Tribunal finds that the second and third applicants do not meet the criteria for the grant of a visa in accordance with cl.500.311.

35. 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

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

    Warren Stooke AM
    Member