Mir (Migration)

[2019] AATA 3535

Mir (Migration) [2019] AATA 3535 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Askar Ali Razvi Mir

CASE NUMBER:  1722295

HOME AFFAIRS REFERENCE(S):           BCC2017/2570654

MEMBER:Peter Booth

DATE:16 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2019 at 10:28am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – enrolment in a registered course – limited course progress – lengthy residence in Australia – applicant’s personal ties to India - minimal incentive to return to India – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 30 August 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 19 July 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 applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 27 March 2019 to give evidence and present arguments.  

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 entrant.

2. 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?

1. 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.

2. 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.

3. The applicant arrived in Australia on 29 June 2009 pursuant to a student visa (subclass 572) valid until October 2011. 

4. In India, the applicant had completed Year 12 in 2005.  He completed several courses whilst in Australia:

   (a)Certificate III in Printing and Graphics (May 2011)

   (b)Bachelor of Networking (July 2015)

5. He said that he then undertook a ‘Professional Year’ in which he worked in ‘the industry’ and that it was a requirement of his degree.  He worked in an IT company ‘DOT.NET’ for four months during this time.  It was not a paid position.  The applicant applied for several ‘low salary’ jobs in the order of $35,000 - $45,000AUD per annum he said.  He was unsuccessful.  It does not appear that he underwent any other work experience in the ‘Professional Year’.

6. The applicant enrolled in a Diploma of Project Management which was scheduled to commence in August 2017.  He said that he attended this course for about three months, the provider informing him that he could not continue, his visa having expired.

7. The applicant has enrolled in a Diploma of Project Management due to be undertaken from 18 March 2019 to March 2020. 

8. The applicant said that he went to India on 29 July 2018 for five weeks when asked what he did from July 2017 to march 2019.  He did not give evidence that he had been studying but said that he had been ‘waiting for the [visa] decision for two years’ having applied for another visa in July 2017.

9. The applicant was asked to explain why he had completed a Diploma in Project Management when his earlier study had been in computer networking.  He said he would ‘get a better job’.  He is not currently working but ‘looking for job opportunities’.

10. The applicant left Australia to travel to India in May 2014 (for 28 days) and July 2018 (for about 2-3 months).

11. The applicant’s immediate family in India comprises his father, mother and two brothers.  He was married in 2014 and his wife lives in India.  His wife came to Australia on 29 September 2016 and stayed for about 18 months.  She returned in July 2017. He last saw his wife when he returned to India in late 2018.

12. The applicant owns an apartment in India which he estimates to be worth about $250,000AUD.  There are no reasons why he cannot return to India or that there would adverse consequences were he to do so.

13. The Tribunal drew the applicant’s attention to reference in the delegate’s decision to various courses which he had not completed.  The applicant had a copy of the decision in his possession in the hearing.  They were as follows:

    (a)First, a Diploma of Multi Media.  He said that it was similar to the Certificate III in Graphics which he had undertaken.  He said that he went to lectures for about one month but it was not very different to the Certificate III course and so he abandoned it.  When asked if he had researched the course before starting he said that the subject names had been different but once he started it was clear that the content was the same as he had already undertaken in the Certificate III course.

    (b)Secondly, a Diploma of Interactive Media.  He said that he had enrolled in it but found that the content of the course was the same as the Certificate III course which he had completed.  He abandoned it.

14. The applicant did not produce any course details of these courses which would show that the content was the same as that of the Certificate III course.

15. When asked why he was intending to study the Project Management degree he said that his mother-in-law lives in Dubai and he has relations working as network designers.  They had suggested that if he completed a project management degree that he would ‘get a better job’.  Whilst he conceded that he could study such a degree in India, he said that an Australian qualification was a more prestigious degree.

16. The Tribunal informed the applicant that his submissions dated 4 March 2019 had been read and inquired if there were any aspects which he wished to emphasise.  He said that he had researched information technology and networking jobs and that a project manager in such fields was a better job.  He said that he wanted a ‘white collar job’.

17. The applicant informed the Tribunal that his first child is due in May 2019.  He went on to say that his earnings as a computer network engineer would be about $20,000 to $35,000AUD but that of a project manager would be $50,000AUD.  If he found work as a project manager in Dubai the job would pay about $75,000AUD with low taxes and low expenses.

18. The applicant said that he intended to return to India once the study was complete.  Further, that he had not applied for permanent residency, as many of his friends had done.  This was said to demonstrate his intention to reside temporarily in Australia.

19. The Tribunal inquired what he had done after completing the Diploma of Project Management in January 2018.  He said that he had ‘explored opportunities overseas’.  He went on to say that he undertaken no study between January 2018 and March 2019.

20. The Tribunal observed that the Certificate of Enrolment for his intended course stated the course was due to commence on 19 March 2019, namely approximately one week prior to the hearing.  He was asked to explain why, after over one year of not studying, he had enrolled in a course due to start one week before the hearing.

21. The applicant’s representative, Ms Rumina said that she had contacted the provider who agreed to enrol the applicant but that if a favourable outcome was not achieved in the review, it would cancel the enrolment.

22. The Tribunal asked Ms Rumina why this should not be seen as a device, to assist in the hearing.  She said that the bridging visa enabled the applicant to study but that providers all insisted on a current study visa before enrolment.  She said that this provider considered the imminent hearing date to make a difference.  The Tribunal observed that the Certificate of Enrolment was not expressed to be conditional.

23. The representative went on to contend that the applicant had strong ties in India, and had completed several courses here.  He genuinely wanted to return to India and had no intention to stay or seek permanent residency she said.

24. The Tribunal does not consider the applicant is a genuine temporary entrant for the purposes of study for a variety of reasons.

25. The applicant arrived in Australia on 29 June 2009.  He has resided in Australia for nearing 10 years.  He has left Australia on only two occasions in that time.  Once for a period of 28 days and once for 2-3 months.  This is not the conduct of a person wishing to reside in Australia on a temporary basis.

26. The Tribunal acknowledges that the applicant has strong family and financial ties to India, indeed he is now married and expecting his first child shortly.  However, these ties have not been sufficient for him to regularly visit India prior to his marriage in 2014.  Subsequent to his marriage, he left Australia on two occasions, although it is not clear if one of those occasions was indeed in order to be married in India.  Thereafter, his wife resided in Australia for about 18 months from September 2016.  If he is to complete the current course he will be required to stay in Australia until early 2020.  The Tribunal assesses his family ties in India to be insufficient to outweigh his desire to live in Australia for an indefinite period.

27. The applicant appears to have made some inquiries regarding the utility of his current course and its relevance to his income earning capacity.  The Tribunal accepts that the current course will add to his qualifications and render him more employable.  However, the Tribunal notes that his existing qualifications are already sufficient for the applicant to be employable.  The applicant acknowledged this but desires employment which he believes will derive higher levels of income. The pursuit of as many vocational qualifications as possible is not the conduct expected of a person seeking to reside in Australia on a temporary basis.

28. Lastly, it is of significant concern that the Certificate of Enrolment was obtained a few days before the hearing.  The applicant had no convincing explanation as to why he had not sought to be enrolled in a course in January 2018 when he had completed the Diploma of Project Management.  The Tribunal considers that the Certificate of Enrolment was a document which was obtained for the purposes of assisting his application.

29. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to India.  The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

30. The Tribunal has considered the applicant’s personal ties to India.  While the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

31. The Tribunal gives weight to the evidence that since the applicant’s arrival in Australia on 29 June 2009 the applicant has spent nearly 10 years in Australia and travelled twice outside of Australia which indicates that the applicant does not appear to have strong personal ties to India.  Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be minimal.

32. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

33. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

34. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

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.

36. 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).

DECISION

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

Peter Booth
Member