Nayak (Migration)

[2019] AATA 1442

Nayak (Migration) [2019] AATA 1442 (17 January 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhairya Jagdeepbhai Nayak

CASE NUMBER:  1814733

HOME AFFAIRS REFERENCE(S):           BCC2018/1196569

MEMBER:Mark Bishop

DATE:17 January 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 17 January 2019 at 2:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English course – not genuine student – does not genuinely intend to stay temporarily in Australia – numerous course enrolments – numerous cancellations – failed to complete courses since arrival – minimal evidence of ties to home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cl 500.312, Condition 8105

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 3 May 2018 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 13 March 2018. 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.500.312 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. It contained a record of his academic, visa and immigration history. It contained extracts from the applicant’s PRISMS record. The applicant did not challenge the findings of the delegate.

5. The applicant appeared before the Tribunal on 17 January 2019 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. In considering whether the applicant met the genuine temporary entry criterion the Tribunal had regard to the following factors, consistent with clause 500.312 and Ministerial Direction No 69. The factors were used to weigh up the applicant's circumstances as a whole, in reaching a finding about whether they satisfy the genuine temporary entrant criterion.

   BACKGROUND

8. The applicant was granted a TU-573 visa for study in the Higher Education (HE) sector in Australia on 3 January 2014 with an expiry date of 15 March 2018. The applicant arrived in Australia on 5 January 2014. Shortly before the expiry of this TU-573 visa the applicant applied for a Student Subsequent Entrant visa on 13 March 2018. This application was refused by the delegate on 3 May 2018. The applicant currently resides in Australia as the holder of a Bridging visa A. Condition 8105 is attached to this visa.

   STATEMENTS AND SUPPORTING MATERIAL

9. The applicant provided the following material to the Tribunal:

   ·GTE Statement that outlined the following:

   oHe decided to pursue Engineering studies in Australia;

   oHe did not like Engineering and searched for alternate studies;

   oHe regularly changed universities because of course costs;

   oHis cousin was diagnosed with breast cancer. He provided assistance to her and his niece;

   oHis girlfriend came to Melbourne. He assisted her to get established. He proposed to her, the families agreed and he got married. He wishes to support his wife whilst she studies;

   oHe has family in India as does his wife;

   ·Copy of school leaving certificate from A-ONE School in India and copy oif Gujarat Secondary and Higher Secondary Education Board Achievement with statement of results;

   ·ELICOS Program Results showing EAP3  achieved and EAP4 not achieved;

   ·Copy of affidavit of sponsorship of the applicant by his parents-in-law;

   ·Confirmation of Enrolment in a Certificate III in Commercial Cookery (now expired) commencing 19 September 2016;

   ·Copy of Marriage certificate showing registration date of 15 March 2018. 

10. On 17 December 2018 the Tribunal wrote to the applicant in the following terms:

    ·In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    ·We will assess whether you are a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa. Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

    ·Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa by referring to Direction No. 69.

11. The applicant provided an additional statement to the Tribunal. It outlined the following:

    ·The applicant arrived in Australia on 5 January 2014. He completed a General English course. He has not completed or graduated from any other courses since that time;

    ·He initially enrolled in Engineering and later switched to Hospitality Management and Business;

    ·His cousin was diagnosed with cancer and he provided assistance to her. This assistance adversely affected his studies. His cousin recovered from her “ailment”;

    ·His girlfriend joined him in Australia. He proposed to her. The respective families agree. He married his girlfriend;

    ·He decided to pursue a new role as breadwinner;

    ·The delegate was in error in the following respects:

    oThe delegate over emphasised the previous education (non) performance of the applicant;

    oThe delegate did not give significance to the genuineness of the relationship;

    oThe delegate overlooked the fact the applicant had returned to India on three occasions;

    oThe applicant chose to discontinue his studies as the applicant was not permitted to study as a dependant;

    oThe marriage is not contrived;

    ·The delegate expressed concern that the applicant failed to complete any courses since arrival. The reasons for this lack of completion were beyond the control of the applicant;

    ·The delegate gave undue significance and weight to the fact the applicant did not complete any study. The delegate was wrong in being concerned about the education history of the applicant.

    ·The main factor to be considered by the Tribunal is the genuineness of the relationship

12. The applicant provided numerous photographs of a couple taken at various times, nearly all on their own and occasionally with others.

13. The applicant provided a copy of a medical diagnosis of cancer relating to an Ms Nayak as outlined in paragraph 11 above. In his written submission the applicant advised of Ms Nayak’s recovery.

14. The applicant provided additional supporting information (ELICOS program Reports dated 2014, copy of unit results 2014/2015 showing fails in all subjects, confirmation of enrolment letter from Stott’s College dated July 2015, a series of COE’s in the period July 2015 until June 2019 (as outlined below in paragraph 17 cancelled by the education provider, receipts for payment of tuition fees, affidavits of support, copies of a bank statement, phone accounts, enrolment detail in a Master of Electronic Engineering for a MS Rita MEHTA).

15. The applicant provided a copy of an affidavit dated 14 January 2018 signed by an A/Sergeant of Police that outlined the applicant’s marital arrangements and advised “[the applicant] has been the manager of the Eltham Court Pizza Shop since August 2017. He is a tireless worker. He is well-respected by his co-workers”. In evidence the applicant advised 15 to 20 hours per week.

    ADVERSE INFORMATION

16. Adopting the procedure in section 359AA of the Act, the Tribunal provided adverse information to the applicant. The Tribunal provided a written copy of the PRISMS record to the applicant. The Tribunal explained the adverse information was derived from the PRISMS record of the applicant. The Tribunal explained the meaning of PRISMS record.

17. The Tribunal outlined particulars of the information, explained its relevance, advised the information would be a reason, or part of a reason for the Presiding Member to affirm the decision of the Department in his case and refuse the application for a visa.

18. The adverse information was as follows:

    ·The applicant enrolled on 19 separate occasions in five streams of study in English, Engineering at Diploma and Bachelor level, Commercial Cookery III and IV, Hospitality Management and Business at Bachelor level and Business at Certificate, Diploma and Advanced Diploma level in the period 6 January 2014 until the present time;

    ·The applicant finished courses in English. Finished does not meant completed or graduated. It means the time for completion of the course has expired;

    ·All enrolments in approved courses after 18 July 2014 were cancelled by the education provider for reason of “change to COE” “non-payment of fees”  “non-commencement of studies” or “student advises cessation of studies”;

    ·The applicant’s last enrolment in a number of courses of study were cancelled by the education provider on 7 September 2016;

    ·The applicant is not currently enrolled in an approved course of study.

19. The Tribunal inquired if the applicant sought additional time to consider the adverse information. The applicant advised he did not seek additional time.

20. The Tribunal requested the applicant address each of the above dot points as outlined in paragraph 20 above. In evidence the applicant advised as follows:

    ·In respect of dot point 1 the applicant advised it was correct;

    ·In respect of dot point 2 the applicant advised he completed the course. The Tribunal accepts this advice;

    ·In respect of dot point 3 the applicant advised it was correct

    ·In respect of dot point 4 the applicant advised it was correct. He advised he did not complete the course. He advised he stopped studying around December 2017.

    ·In respect of dot point 5 the applicant advised it was correct.

21. In addition the applicant advised he made a series of mistakes and was poor in study and this was why he did not finish any course.

22. The applicant did not provide any Certificates of Graduation or Completion of any courses in Australia. The applicant did not provide any Statements of Attainment or academic transcript that outlined course progress in any way for any period of study.

    PRINCIPLES

23. At this point is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

    CONSIDERATION OF EVIDENCE

24. The applicant did not provide any Certificates of Graduation or Completion of any courses in Australia. The applicant did not provide any Statements of Attainment or academic transcript that outlined course progress in any way for any period of study. In evidence the applicant advised he had only completed a General English course and no other.

25. The applicant provided a range of Confirmation of Enrolments in courses relating to Engineering, Hospitality Management and Business.

26. The applicant applied for a Student Subsequent Entrant visa on 13 March 2018 and provided evidence of having married an existing student visa holder and claims that he meets the Genuine Temporary Entrant Criterion.

27. The applicant provided a statement of purpose to the Department in support of the genuine entrant requirement. In this statement he solely focusing on his relationship history with his wife and how he was going to support her, as it is his duty, as her husband, to assist and support her to continue her studies.

28. The applicant provided statements and supporting material to the Tribunal as outlined above in paragraphs 9, 11,12 and 14.

29. The primary applicant lodged a student visa application on 10 January 2018 in India as a single applicant and arrived late on 26 January 2018. The applicant claims that he proposed to her on 30 January 2018 and decided to get married according to Australian law on 5 March 2018 and his application was lodged on 13 March 2018, just a couple of days prior to his own student visa expiry on 15 March 2018. However, neither he nor the primary applicant declared each other as dependent applicants on previous applications.

30. The marriage certificate provided to the Department and Tribunal is dated on 05 March 2018 and was registered on 15 March 2018. Taking into account the timing of the marriage and the fact that both of the marriage parties failed to declare each other on their respective applications the Tribunal questions whether the applicant and the primary applicant entered the marriage as a commitment to their relationship or if the marriage was entered with the intention to lodge a subsequent entrant application. The Tribunal has serious concerns that the marriage as presented was contrived for the purposes of obtaining a subsequent entrant student visa.

31. Given the overall very general information provided in his statement and the lack of explanation as to why he is ceasing his own studies, despite having gone through great lengths to apply for and obtain visas to study a bachelor degree in Australia the Tribunal finds it difficult to reconcile the fact that having gone through the efforts to enrol in a high cost, long term venture such as a Higher Education studies in a foreign country, the applicant has suddenly decided to change direction. Consequently, the Tribunal is not satisfied that the applicant genuinely intend to stay in Australia temporarily.

32. The Tribunal has given regard to the applicant’s immigration and education history in conjunction with the timing of his marriage to the primary applicant and the lodgement of visa applications.

33. The decision record discloses records show the applicant first arrived onshore on 5 January 2014 and since arrival has spent a minimal period of time out of Australia.

34. The applicant has been onshore since 2014, has failed to complete any Higher Education studies, failed to provide an explanation as to why he is ceasing his own studies, in conjunction with the timing of his marriage and lodgement of applications the Tribunal has concerns that the dependent visa application has been chosen for the purpose of enabling him to continue residing in Australia with work rights while not having to undertake studies.

35. At the conclusion of the review hearing the Tribunal invited the applicant to make a comment. The applicant advised he needed one more year to remain in Australia whilst his wife continued her studies.

36. The applicant’s wife Mrs MEHTA advised the Tribunal she came to Melbourne and her now husband helped her a lot. They decided to get married. Mrs MEHTA is studying a Master of Electronics at La Trobe University. Mrs MEHTA holds a Bachelor degree from India. Mrs MEHTA advised she was progressing well in her studies. Mrs MEHTA advised she needed her husband to remain in Australia.

37. The Migration Agent advised he did not wish to make oral submissions.

38. Having considered all the information before the Tribunal, given the applicant’s personal circumstances, the minimal amount of evidence of ties to his home country, his immigration history, the lack of commitment to repeated courses of study over many years, the paucity of academic achievements over many years, the lack of even a minimal explanation concerning future goals and the comparatively greater economic and employment opportunities in Australia, the Tribunal finds that the applicant is using the Student visa program to circumvent the intentions of the migration program.

39. The Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student and that he intend to stay in Australia temporarily.

40. The Tribunal has given regard to whether there is any other relevant matter. As there are no other relevant matters to consider that maybe beneficial or adverse to the applicant, this aspect is not relevant.

41. 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

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

    Mark Bishop
    Member