Parmar (Migration)

[2018] AATA 5935

Parmar (Migration) [2018] AATA 5935 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vijaykumar Baldevdas Parmar
Mrs DAYA VIJAYKUMAR PARMAR

CASE NUMBER:  1703013

HOME AFFAIRS REFERENCE(S):           BCC2016/2579355

MEMBER:Adrienne Millbank

DATE:17 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 17 December 2018 at 4:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – employment and career objectives in India – work in Australia – incentives to return or stay – study history – multiple courses at same or lower level – non-completion of courses – period of non-enrolment – non-payment of fees – use of visas and courses to maintain residency – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a), 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 Immigration and Border Protection on 7 February 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant (the applicant) was born in India in 1982 and is 36 years old at the time of decision. He first arrived in Australia on 28 June 2013, on a Student (Subclass 573) visa, and has not left Australia since this time.

3. The applicants applied for the visas on 4 August 2016. 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.

4. 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). The Delegate was not satisfied, on the information and evidence provided, that the applicant is a genuine temporary entrant.

5. Regarding the applicant’s immigration and study history, the Delegate noted that he was not enrolled in any course for a period of four months from 17 February — 12 June 2016, and that he had been reported for non-payment of fees on two occasions.

6. Regarding the applicant’s genuine temporary entrant claims, the Delegate noted that the applicant had worked as a retail assistant manager in India, but has not used qualifications he has obtained in Australia (and New Zealand) to gain further employment in his home country, and had not clearly demonstrated the benefit of further courses to his remuneration level or career prospects. Regarding his incentives to return home, the Delegate noted that the applicant has no assets or business ties in India, and has not returned even for a visit, despite having a son in India born in 2008. The Delegate was concerned that the applicant was using the Student visa system for de facto residency.

7. The applicants appeared before the Tribunal on 5 December 2018 to give evidence and present arguments.

8. The applicants were assisted in relation to the review by their registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 intends genuinely to stay in Australia temporarily.

11. 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.

12. 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.

13. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. The applicant provided to the Tribunal, through his representative, a written submission dated 27 November 2018, addressing the Delegate’s decision. The Tribunal was advised that the applicant in his employment in India in fact rose to the post of Assistant Store Manager in Big Bazaar, a chain of superstores owned by Pantaloon Retail India Ltd. The applicant advised that despite his promotion, he had higher ambitions, decided he needed formal qualifications, and observed that ‘high officials in Pantaloon Retail India were having overseas qualifications’. He arrived in Australia on a higher education Student (Subclass 573) visa, but opted for diploma level courses after he found the coursework for his Bachelor of Business at James Cook University too hard. After enrolling in business and management courses at Spencer College, which didn’t work out for him, he is pursuing, he advised, an Advanced Diploma in Leadership and Management at Skills Institute, for ‘additional competitive advantage’.

15. In his written statement the applicant explained that his Bachelor of Business course at James Cook University was cancelled in 2014 only after he enrolled at Spencer College to do a Diploma of International Business. He advised that his enrolment in an Advanced Diploma of Management at Spencer College was cancelled following a ‘misunderstanding’ regarding ‘remaining dues’, when the college refused to accept late payment. He further explained at hearing that he left Spencer College following the dispute with administration about overdue fees, which remained unresolved, and enrolled in business oriented courses at Skills Institute. Regarding his failure to return home to India, even to visit, he stated that the intention was that his parents would visit him in Australia, but they were not able to because of his mother’s ill-health. He claimed that he maintained contact with his parents, siblings and son in India via Skype and other internet applications.

16. Adopting the procedure in section 359AA of the Act, the Tribunal advised the applicant that it had on the Tribunal file a copy of his Provider Registration and International Student Management System (PRISMS) records. The applicant confirmed he understood what the PRISMS database is. The Tribunal put to the applicant that according to these records, he was proposing to study a course similar in content, and at the same level, as courses he had previously enrolled in; and that despite being onshore for five and a half years, he had successfully completed only one diploma-level course and one advanced diploma-level course, each of only one year’s duration. The Tribunal explained the consequences of the Tribunal relying on the information about his enrolments, namely, that it would lead or could contribute, subject to his response, to the Tribunal affirming the decision under review. The Tribunal advised the applicant he could seek additional time to comment on or respond to the information.

17. The applicant did not seek additional time. He confirmed that he is the holder of three business-related qualifications obtained since 2011: a New Zealand National Business (level 6) Diploma awarded in July 2012; a Diploma of Project Management from Skills Institute in Brisbane awarded on 25 July 2017; and an Advanced Diploma of Project Management from Skills Institute in Brisbane awarded on 22 June 2018. He acknowledged that besides the Bachelor of Business he enrolled in in 2013, he enrolled in a Diploma of International Business in 2014; an Advanced Diploma of Business in 2015; and an Advanced Diploma of Management in 2016. He acknowledged that he did not complete the Advanced Diploma of Management. He claimed he completed the two Business courses, but the college refused to award him qualifications because of their conflict. He claimed that the college corruptly offered to recognise his completed coursework on the condition he remained for a further two years and paid for two more courses, which he refused to do.  

18. The applicant confirmed that he did not lodge a complaint about the course provider and did not raise his study problems with the Department. He stated that he was young and naïve at the time. The Tribunal does not accept the applicant’s explanation as to why he failed to successfully complete courses he enrolled in at Spencer College. The Tribunal notes that the applicant was in his thirties when he enrolled there, and that he had lived in New Zealand and Australia for some years. The Tribunal notes that the applicant presented at hearing as confident and assertive.

19. The Tribunal referred the applicant to its letter of 8 November 2018, requesting him to provide, at least 7 days before the hearing, copies of all his attendance certificates and academic transcripts as well as certificates of completion. The applicant claimed Spencer College would not assist him in this regard. The Tribunal does not accept that the applicant was not able to obtain records of his attendance and academic performance from Spencer College. The Tribunal is of the view that he enrolled in these courses for the purpose of extending his time in Australia, rather than seriously pursuing studies for the purpose of his  career advancement in India.

20. The Tribunal notes that the applicant lived and worked in Australia for over four years before he obtained one diploma-level qualification. The Tribunal accepts that he obtained a Diploma of Project Management in 2017 and an Advanced Diploma of Project Management in 2018 from Skills Institute. The Tribunal notes that in a written statement titled ‘Genuine Entrant Criteria’, provided to the Department before the Delegate’s decision, in August 2016 in response to a request for further information, the applicant wrote, regarding the relevance of the courses he was then enrolled in at Skills Institute:

    After completion of Diploma in Project Management and Advance Diploma in program management at Skills Institute, I will be qualified to get a good position in any jobs. This course has a good scope for the future. … After completing my study I will have all the knowledge to go back with good management skill and can utilise that on customer service fields and build a great position in middle level management.

    The Tribunal further notes that Skills Institute on its website describes its Diploma of Project Management and Advanced Diploma of Project Management as designed to impart graduates with managerial competence to lead teams to achieve organisational objectives.

21. The Tribunal asked the applicant why he did not return to India after obtaining his diploma and advanced diploma from Skills Institute, as they appeared to have equipped him for a management career in retailing. The applicant confirmed that he still intends to return to work in the retail sector, possibly for Pantaloon Retail India, but claimed he has realised he needs further, broader skills to equip him to lead teams in a large retail business. He claimed he could earn 100,000 rupees (AUD1,946) a month, but did not provide a detailed explanation of the sort of position he aspires to.

22. The Tribunal put to the applicant that he is 36 years old, has been out of India and the Indian job market for ten years, and has not worked in business or management leadership positions in retail in Australia. The Tribunal put to the applicant that a potential employer from Pantaloon Retail India or any other large retail company in India, might look at the qualifications he has achieved in New Zealand and Australia, his academic record including his unsuccessful enrolments, and his work experience (as a cleaner) in Australia. The potential employer might conclude the applicant is a slow learner, and/or lacks the drive and ambition necessary for a management-level career in retailing in India, and/or has enrolled in a series of similar, relatively low-cost courses for the purpose of maintaining de facto residence in Australia, rather than committing himself to a future in India. The potential employer might prefer a candidate with work experience and a record of achievement in India.

23. The applicant argued in response that Australian business qualifications are respected by employers in India. He repeated his claim that another advanced diploma will equip him with a competitive edge. He acknowledged that the courses he has enrolled in have all been in the same field of study, and argued that this demonstrates his commitment to return to India and work at management level in the retail business.  When the Tribunal asked the applicant if he intended to leave the country after obtaining one more advanced diploma, he stated that he does not; he intends to enrol again in a Bachelor of Business. He advised that he feels more confident, academically, now that he has obtained a diploma and advanced diploma, and that it would be satisfying for him because it would impress his family more, to return to India with a Bachelor Degree.

24. As noted, the applicant has successfully completed only two business-related courses since his arrival in Australia. The Tribunal notes that if he enrols in another Bachelor Degree course after he completes an Advanced Diploma of Leadership and Management, he will have lived in this country for over a decade and enrolled in a large number of business and management courses. The Tribunal finds that the applicant’s academic record and his stated intentions to remain in Australia, enrolled in further, similar studies, are not commensurate with the temporary stay objectives of a Student visa.

25. The Tribunal does not accept on the evidence and arguments provided that the prospect of a managerial level position in a large retail business in India is an incentive for the applicant to return home. The Tribunal notes that the applicant held a Store Manager position, in Bazaar   in Pantaloon Retail India, a large company, before he left India for New Zealand and Australia. The Tribunal also notes that the remuneration for the position he claims he aspires to is less than he could earn in Australia.

26. The Tribunal does not accept that the applicant’s family in India, including his ten year-old son, is a significant incentive for him to return. The applicant’s wife, the secondary applicant, is in Australia with him, and working as a housekeeper. The applicant at hearing advised that although he has missed his son, he is not concerned about his welfare as he is looked after by ‘everybody’, and they maintain contact via internet applications. While the applicant has no family in Australia other than his wife, the Tribunal considers that he and his wife, the secondary applicant, would have established social and economic ties in this country in the five and a half years they have lived here.

27. The Tribunal accepts that the applicant was previously granted two Student visas by the Department, and that he was granted a vocational-level Student (Subclass 572) visa after being granted a higher-education Student (Subclass 573) visa. The Tribunal acknowledges that this indicates an acceptance, at the time of the visa grant, of the applicant studying at a lower level than originally intended. The Tribunal however does not find this relevant to the applicant’s claim to be a genuine temporary entrant at the time of this decision.

28. While accepting the argument that undertaking business-related courses in Australia, in English and in an English-speaking country, might have conferred a competitive advantage on the applicant for a career in retail management in India, the Tribunal does not accept that this advantage will compound with additional, similar courses. The Tribunal is not satisfied on the evidence provided that further business studies in Australia will confer on the applicant additional advantage such as to justify the time and expense involved; that the further studies proposed will add significant value to his future; or that he could not undertake further studies in India relevant to his job aspirations.

29. The applicant confirmed at hearing that he has no reason not to return to India, such as military service commitments or political and civil unrest.

30. From the length of time the applicant has spent and intends to spend in Australia on Student visas, the Tribunal is concerned that he is using Student visas to maintain ongoing residence, and to circumvent the intentions of the migration program.

31. On the basis of all of the above, the Tribunal not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

32. Accordingly, 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.

33. 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.

34. As the applicant does not meet the criteria for the grant of a Student visa, the secondary applicant does not meet clause 500.311 in Schedule 2 of the Migration Regulations.

    DECISION

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

    Adrienne Millbank
    Member