Kuldeep Kumar (Migration)

[2018] AATA 5428

Kuldeep Kumar (Migration) [2018] AATA 5428 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Kuldeep Kumar
Hardeep Kaur

CASE NUMBER:  1620587

DIBP REFERENCE(S):  BCC2016/1990180

MEMBER:P. Wood

DATE:8 November 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 8 November 2018 at 12:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – genuine temporary entrant – incentives to return to home country – presence of the daughter in India – economic disparity – study intentions – regression from higher education sector to vocational education sector – reasons for undertaking study in Australia – career plans – family business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 572.223, 572.322

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 and Border Protection 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 8 June 2016. The delegate decided to refuse to grant the visas on 18 November 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 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. The delegate refused to grant the visas because the first named applicant did not satisfy the requirements of cl. 573.223(1)(a) of Schedule 2 to the Regulations. Put simply, the delegate determined that the first named applicant was not a genuine temporary entrant.

5. The first named applicant appeared before the Tribunal in person on 4 April 2018 and 29 August 2018 to give evidence and present arguments. The second named applicant, the first named applicant’s wife, chose not to give evidence at the hearings. The Tribunal made available accredited interpreters in the Punjabi and English languages at the request of the first named applicant.

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 first named applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

8. The primary issue in the present case is whether the first named 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 first named 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.

10. The 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. Direction No.53 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.

12. In this case first named applicant is a 32-year-old male who lives in share-accommodation in the western suburbs of Melbourne with his wife and second named applicant, Ms Hardeep Kaur. The first named applicant arrived in Australia for the first time on 16 July 2009 (having been granted a subclass 572 student visa offshore on 22 June 2009). He and Ms Kaur married in India in 2015. At the outset, the Tribunal observes the presence of the second named applicant in Australia presents as a strong incentive for the first named applicant to remain in Australia.

13. The first named applicant told the Tribunal that he and his wife pay a friend $800 AUD per month to rent the upstairs section of their share accommodation. The first named applicant told the Tribunal that his wife doesn’t work but would like to pursue a career in the beauty industry. He told the Tribunal that his wife has been unsuccessful in applying for work in Australia.

14. The first named applicant told the Tribunal that their young daughter, born in October 2015, is cared for by his mother and sister in India. Ordinarily the Tribunal would consider that the presence of the daughter in India would serve as a significant incentive to return to India but the Tribunal considers, for reasons which are outlined below, that the first named applicant has demonstrated a conspicuous reluctance to succumb to his claimed incentives to return to India.

15. At the time of applying for the visa on 8 June 2016, the first named applicant proposed to the Department to study a Bachelor of Business tertiary level degree at a private higher education provider. The first named applicant applied for the visa on the same day that he enrolled in that degree which was also the same day that his previous subclass 572 visa ceased. The first named applicant told the Tribunal that he ceased his enrolment in the Bachelor of Business degree upon the delegate refusing his visa. This situation causes the Tribunal to be concerned that the first named applicant recommenced study in order to secure a further student visa rather than because of a genuine desire to study the selected course. The Tribunal is also concerned that the first named applicant may have proposed a tertiary degree in his student visa application in order to assuage any concerns that a delegate may have in relation to the length of time that the first named applicant has spent studying unrelated vocational courses in Australia.

16. The first named applicant told the Tribunal that he is presently enrolled in a “Certificate III in Automotive”[1] which he told the Tribunal he intends to complete by January 2019. He told the Tribunal that he intends to return to India after he finishes this course in January 2019. The first named applicant did not volunteer to be Tribunal that he is also enrolled in a Certificate IV in Automotive Management which is due to commence on 14 January 2019 and end on 30 June 2019. He also did not volunteer that he is enrolled in a Diploma of Automotive Management which is due to commence on 1 July 2019 and end on 28 June 2020. These enrolments cause the Tribunal to be concerned that the first named applicant, together with his wife, actually intend to stay on in Australia after the Certificate III course finishes in January 2019.[2]

    [1] The first named applicant’s enrolment records from the Provider Registration International Student Management System (PRISM) indicate that the first named applicant is actually enrolled in a Certificate III in Light Vehicle Mechanical Technology.

    [2] The applicant's enrolment records from the PRISM database were put to him in accordance with the procedure in section 359AA of the Act and this is expanded upon below.

17. During the first hearing on 4 April 2018, the first named applicant told the Tribunal that 3 to 4 months prior he came up with a future plan to join his cousin’s currency conversion and automotive shop in India. In documentation previously provided to the Department the first named applicant had put forward a future plan involving currency conversion and money exchange but the automotive aspect is a more recent proposition. On the evidence, the first named applicant’s claimed career aspirations appear tailored to fit his current, or then current, course selection in Australia. That is not as it should be. If the first named applicant has career aspirations that are claimed to lead out of Australia, back to India or a third country, the courses selected should seek to serve those purposes, and not the other way around. For reasons which are set out further below, the Tribunal doubts the first named applicant’s intentions and future plan.

18. The first named applicant provided a genuine temporary entrant statement dated 12 July 2016 to the Department (df 97). In this statement he claims to have completed a general english course on 26 September 2009 and then had an accident on 30 October 2009 “which required hospitalisation and rehabilitation”. During the first hearing on 4 April 2018, the Tribunal questioned the first named applicant about the accident. He told the Tribunal in October 2009 he was not working and obtained a part-time job installing insulation through a friend. He said that on the first day in this job he didn’t know what he was doing and fell from a roof. It has been widely reported, and is a matter of common knowledge, that the Commonwealth Government’s Home Insulation Program was underway at this time.[3] The first named applicant told the Tribunal that he incurred a head injury and was in a coma for 15 days. He told the Tribunal that he was in hospital for two months. According to the written statement provided to the Department, the first named applicant returned to India between 6 January 2010 and 15 April 2010 for rehabilitation. The first named applicant confirmed this in his oral testimony.

    [3] Following safety concerns, the Home Insulation Program was terminated in early 2010.

19. The first named applicant provided the Tribunal with a letter addressed to “to whom it may concern” dated 25 November 2009 from Dr Ishani Rajapaksa of the rehabilitation department of the Epworth Hospital located in Bridge Road, Richmond, Victoria. In this letter Dr Rajapaksa confirms that the first named applicant sustained numerous injuries following an accident, including a “traumatic brain injury” which required hospitalisation and rehabilitation.[4] The first named applicant told the Tribunal that for several years following the accident he had follow-up appointments with medical practitioners in Melbourne but in recent times this has ceased. In the circumstances, the Tribunal accepts the first named applicant’s evidence concerning the accident, his injury and rehabilitation.

    [4] The letter from Dr Rajapaksa refers to the accident having occurred on 31 October 2009, this is presumed to be an error and nothing turns on it.

20. The Tribunal interposes here to observe that on the two occasions which the first named applicant appeared before the Tribunal he presented as having capacity to participate in the hearings. He appeared to listen carefully to the Tribunal’s questions and at all times appeared to have understood what was taking place. This is not a finding the first named applicant hasn’t suffered an injury as claimed but rather an observation as to his capacity to participate in the review process.

21. In the genuine temporary entrant statement dated 12 July 2016 provided to the Department the first named applicant confirms having been enrolled in a Certificate III in Printing and Graphic Arts, a Diploma of Business, a Diploma of Management, a Diploma of Information Technology Networking and an Advanced Diploma in Network Security. According to the delegate’s decision record dated 18 November 2016, the first named applicant has also been enrolled in numerous other vocational sector courses including a Certificate IV in Business, a Certificate IV in Business Management, a Diploma of Interactive Digital Multimedia and an Advanced Diploma of Management. The first named applicant’s enrolment records from the PRISM database show 14 cancelled vocational education courses.[5]

    [5] The applicant's enrolment records from the PRISM database were put to him in accordance with the procedure in section 359AA of the Act and this is expanded upon below.

22. The first named applicant also provided the Department with a copy of his completed secondary school results from March 2005, a certificate evidencing him having completed the ten-week English language course previously referred to above (between 21 July 2009 - 26 September 2009), a statement of attainment for the Certificate III in Printing and Graphic Arts and a copy of that qualification, a statement of attainment for the Diploma of Business and a copy of that qualification, a statement of attainment for the Diploma of Management and a copy of that qualification, a statement of attainment for the Advanced Diploma of Network Security and a copy of that qualification, a confirmation of enrolment in the Bachelor of Business degree from the Melbourne Institute of Technology, a partial completion letter dated 12 September 2014 for the Diploma of Information Technology Networking and various financial documents (in relation to access to funds). The Tribunal has read and had regard to this documentation.

23. In the same statement the first named applicant claims to want to establish his “own money exchange company” in India. At the time of providing the statement to the Department, the first named applicant was enrolled in a Bachelor of Business degree at the Melbourne Institute of Technology. The first named applicant claims to have chosen that study provider because he understood the institute to provide excellent training and education.

24. The Tribunal questions whether the first named applicant has sound reasons for wanting to study in Australia. When questioned by the Tribunal as to why he chose to continue to study in Australia after deciding to change disciplines from business to automotive, the first named applicant said that “I’m here, so I want to complete it here”. In the genuine temporary entrant statement dated 12 July 2016 provided to the Department the first named applicant claimed to want to study in Australia because of the industry focused and highly practical training available. The Tribunal finds that the first named applicant did not establish sound reasons for not undertaking study in his home country or region.

25. The first named applicant provided the Tribunal with an undated but updated genuine temporary entrant statement entitled “a written statement addressing the issue of whether I am a genuine temporary entrant by referring to this direction” (tf 41). In this statement the first named applicant claims to still suffer from headaches and memory loss arising from the before mentioned accident. The Tribunal accepts that this is probably so. Interestingly, he did not claim the document that his headaches and memory loss affect his ability to study but the Tribunal considers that this is probably so. The first named applicant also claims to have strong family ties to India, that he is committed to his current studies and restates his plan to join a currency conversion and motor workshop business operated by his relative. For reasons which are set out more fully below, the Tribunal does not attach much weight to these claims. The first named applicant also claims to have been disadvantaged by the closure of St Stephen Institute of Technology, a private registered training organisation where he was studying information technology. The Tribunal accepts that the first named applicant may have been temporarily inconvenienced by the closure of St Stephen Institute of Technology, which was reported in the press at the time.[6]

    [6] >

    The first named applicant provided the Tribunal with a copy of the delegate’s decision record (tf 5) and copies of qualifications which he previously provided to the Department (tf 31-37). Additionally, the first named applicant provided the Tribunal with a letter from North Melbourne College addressed to “to whom it may concern” dated 21 March 2018 which confirms that the first named applicant is enrolled in a Certificate III in Light Vehicle Mechanical Technology. The letter confirms that the first named applicant is due to complete this course on 13 January 2019.

26. The applicants’ families continue to live in India. The first named applicant has returned to India on several occasions since first arriving in Australia in 2009. Ultimately, the Tribunal considers that the first named applicant has been able to manage personal relations overseas while living in Australia, by keeping in touch from Australia, and by visiting. The Tribunal does not consider the personal connections overseas to be a distinct incentive for the first named applicant to cease residence in Australia, and finds his personal ties to India do not serve as a significant incentive to return to India. This finding is made with full knowledge, as is outlined above, of the presence of the daughter in India.

27. It is a matter of common knowledge that there is an economic disparity between India and Australia.[7] The first named applicant told the Tribunal that he has been working in Australia as a picker in a food service warehouse operated by Hong Australia Corporation for around six years. He told the Tribunal that ordinarily he would earn around $600-650 per week. The Tribunal considers that the first named applicant has a consistent work history in Australia, including particular ties to a single employer, and finds that the first named applicant’s AUD income earning capacity here presents a significant economic incentive for him not to return to India.

    [7] See also “World Development Indicators”, data.worldbank.org/products/wdi, November 2018

28. Adopting the procedure in section 359AA of the Act, the Tribunal put to the first named applicant clear particulars of his enrolment records from the Provider Registration International Student Management (PRISM) database. The Tribunal put to the first named applicant that during his time in Australia he has been enrolled in numerous courses in addition to those which he has completed and that he has regressed from the higher education sector to the vocational education sector. The first named applicant chose to respond during the course of the hearing. He told the Tribunal that his injury caused him to regress back into the vocational education sector. Whilst the first named applicant’s injury can explain some of his behaviour, the Tribunal does not consider it to be a complete explanation for all matters adverse to him, particularly where there are other explanations equally probable. On the first named applicant’s own testimony, he chose to cease his enrolment in the Bachelor of Business degree upon receiving notification of the delegate’s refusal of his visa. The Tribunal considers this was more likely the primary reason for his regression back into the vocational education sector.

1. Adopting the procedure in section 359AA of the Act, the Tribunal put to the first named applicant clear particulars of his ‘movement details’. The first named applicant chose to respond during the course of the hearing and said that his time in Australia has been extended due to his accident and injury. The Tribunal has accepted above that the first named applicant’s injury has to some degree impacted his study in Australia. Ultimately however, the Tribunal still gives weight to the amount of time that the first named applicant has been in Australia and the limited amount of time that the first named applicant has spent India since he first came to Australia.

2. The Tribunal is concerned that the value of the first named applicant’s current vocational automotive studies to his future is negligible. This is because the Tribunal is not convinced of the first named applicant’s automotive career plan. The Tribunal is concerned that the first named applicant proposes this study simply to extend his time in Australia. It follows that the Tribunal does not consider that the courses proposed will really assist the first named applicant to obtain employment or improve his employment prospects in India or that the study will increase the remuneration the first named applicant could expect to receive in his home country or a third country.

3. The Tribunal is concerned that the first named applicant has for the most part undertaken a series of short, inexpensive courses within the vocational training sector over an extended period of time. The Tribunal considers that the first named applicant’s academic achievements are not commensurate with the time he has spent in Australia on student visas, even allowing for his unique justificatory circumstances arising from his accident. His changes in pathways are also not reasonable. The Tribunal considers that if it were the intention of the first named applicant to stay in Australia temporarily he would not have been so quick to dismiss each area of study he has commenced, and rather, would have committed to one or other of the possible career pathways he started, if not because he saw value in that ambition, then because it would allow him to reunite with his claimed incentives to return to India.

4. In his written statement provided to the Tribunal the first named applicant asserts that he has never breached his visa conditions. The first named applicant has not disclosed an immigration history outside of Australia-India. The Tribunal does not make any adverse finding against the first named applicant in relation to his compliance with visa conditions or prior immigration history.

5. In relation to paras 9d-e of the relevant ministerial direction, the first named applicant did not disclose to the Tribunal any issues in India concerning military service or political or civil unrest. Similarly, in relation to para 10 of the relevant ministerial direction, other than what is referred to above, the first named applicant did not put forward evidence concerning his circumstances in India relative to the circumstances of others in that country.

6. Having considered all the information before it, the Tribunal is concerned that the first named applicant is using the student visa program to circumvent the intentions of the migration program in order to maintain ongoing residence in Australia. On the basis of the above, and having considered the first named applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the first named applicant intends genuinely to stay in Australia temporarily. Accordingly, the first named applicant does not meet cl.572.223(1)(a).

7. The Tribunal has found the first named 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 first named 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 first named applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the first named applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review. The Tribunal finds that the second named applicant does not meet cl. 572.322(b) as she is not a member of the family unit of a person who satisfies the primary criteria in cl.572.223. The second named applicant didn’t make any claims or provide evidence that she satisfies the primary criteria.

   DECISION

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

   P. Wood
   Senior Member