Patel (Migration)

[2018] AATA 5544

Patel (Migration) [2018] AATA 5544 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kalpeshkumar Kanubhai Patel

CASE NUMBER:  1703986

HOME AFFAIRS REFERENCE(S):       BCC2016/3085808

MEMBERs:B. Cullen (Presiding)

P. Wood

DATE:15 November 2018

PLACE OF DECISION:  Brisbane, Queensland

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

Statement made on 15 November 2018 at 4:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – work history in Australia – knowledge of proposed studies and associated education provider – academic progress – movement records – value of courses to applicant's future – trade qualifications in the VET sector – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 17 February 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 16 September 2016. 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(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant provided the Tribunal with a copy of the delegate’s decision record dated 17 February 2017. The Tribunal also had access to the relevant file of the Department of Home Affairs.

5. The applicant appeared before the Tribunal on 12 October 2018 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by his registered migration agent. The applicant’s registered migration agent attended the hearing on 12 October 2018 and made submissions on the applicant’s behalf (referred to below).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant.

   Genuine applicant for entry and stay as a student

9. 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?

10. 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.

11. 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.

12. The Tribunal has had regard to documentation provided by the applicant evidencing that he completed high school in India (tf 9 and also contained in the Department file). The applicant told the Tribunal that he is a graduate of a bachelor’s degree in pharmacy, which he completed in India in 2011. The Tribunal accepts the applicant’s education history in his home country as presented to the Tribunal.

13. The Tribunal notes that in addition to the application form which the applicant provided to the Department, the Department file also contains a statement from the Australia and New Zealand Banking Group Limited, a copy of a certificate evidencing completion of BSB50407 Diploma of Business Administration from the Australian Institute of Technology and Management, a letter of sponsorship dated 14 September 2016 from the applicant’s sister, a letter dated 14 September 2016 from the applicant, a PAYG payment summary dated 13 July 2016, a copy of a confirmation of health cover dated 5 August 2016, a copy of the certificate of attendance and transcript of results from the Australian Catholic University (also provided to the Tribunal - see below), a statutory declaration dated 4 November 2016 from the applicant’s sister, passport extracts of the applicant’s sister and brother-in-law, statements from the State Bank of India, payment receipts for the Master of Health Administration degree, a statutory declaration from the applicant’s brother-in-law, bank statements from the Commonwealth Bank of Australia, an affidavit from the applicant’s father and a letter from the applicant dated 18 November 2016. The Tribunal has read and had regard to this documentation.

14. On the day of the Tribunal hearing, the applicant completed a questionnaire provided by the Tribunal concerning his circumstances in Australia and India. The applicant also provided the Tribunal with a statement from the Australia and New Zealand Banking Group Limited (tf 12), a receipt dated 21 February 2015 from the Australian Catholic University, a letter dated 6 March 2017 from Visa Point Migration Services, a letter dated 19 January 2018 from the International Institute of Management and Technology (with accompanying results and certificate), payslips dated between October 2016 and March 2017 evidencing employment as a kitchen attendant and a written statement dated 24 September 2018 signed by the applicant The Tribunal has read and had regard to this documentation.

15. The applicant’s written statement dated 24 September 2018 asserts that:

    ·    the applicant has been studying continuously since the delegate refused his visa application;

    ·    at the time of applying for the visa, he was working at a restaurant and that restaurant closed its doors on 5 March 2017;

    ·    the applicant worked additional hours between February 2016-March 2016 when his college did not offer classes due to a trainer shortage;

    ·    the applicant was studying at the Australian Institute of Technology and Management but moved to the Gateway College of Technology when the Australian Institute of Technology and Management ceased operating; and

    ·    the applicant has complied with his visa conditions and intends to continue to comply with his visa conditions.

16. The applicant told the Tribunal that he originally decided to study in Australia because he determined that there are more opportunities compared to India, because of the higher quality of education on offer here and to realise the opportunity to improve his English language skills in an English-speaking country. The Tribunal accepts this.

17. The applicant was granted a subclass 573 visa offshore on 17 April 2014 in order to undertake tertiary study in Australia. The applicant’s initial 573 visa was due to expire on 14 September 2015.

18. The applicant first arrived in Australia on 23 May 2014 to study an “English for Academic Purposes: Direct Entry program” preparatory English course and a Master of Health Administration postgraduate level degree. The applicant provided the Tribunal with a copy of a certificate of attendance from the Australian Catholic University for the English for Academic Purposes: Direct Entry program course. The certificate is dated 12 December 2014. The Tribunal is satisfied that the applicant attended and completed this program.

19. The applicant told the Tribunal that he found the Master of Health Administration degree too difficult. He told the Tribunal that the format of teaching and the higher level of English required for the postgraduate degree proved too difficult for him. He told the Tribunal that he left the degree after one semester when he didn’t pass the subjects which he was enrolled in. The applicant provided the Tribunal with a copy of an academic transcript from the Australian Catholic University which confirms his fail grades in four subjects undertaken in semester one 2015. The Tribunal is satisfied that the applicant attempted the Master of Health Administration degree and struggled in that course as described.

20. After leaving the Master of Health Administration degree, the applicant chose to study in the TAFE / vocational education sector. On 14 September 2015, the applicant was granted a subclass 572 visa for that purpose. That visa was valid until 19 October 2016.

21. At the time of applying to the Department on 16 September 2016 for the visa which is the subject of this review, the applicant was enrolled to undertake a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. At that time, he had only completed the English language course and a Diploma of Business Administration (BSB50407).

22. In the intervening period between the refusal by the delegate on 17 February 2017 and attending the Tribunal on 12 October 2018, the applicant completed a Certificate IV in Commercial Cookery. A copy of the applicant’s Certificate IV in Commercial Cookery qualification was provided to the Tribunal.

23. At the date of the Tribunal hearing, the applicant was enrolled in a Diploma of Hospitality Management, which is due to finish in November 2018. The applicant is also enrolled in an Advanced Diploma of Hospitality Management. Copies of the confirmation of enrolment certificates for both of these courses were provided to the Tribunal.

24. The applicant told the Tribunal that prior to coming to Australia he had worked in India as a registered pharmacist in a retail shop environment. The Tribunal accepts this. He said that it was initially his plan when he arrived in Australia to return to India in order to study further in the pharmacy field. The applicant’s intentions are discussed further below.

25. It is common knowledge that there is an economic disparity between Australia and India.[1] In these circumstances, the Tribunal questioned the applicant about his economic circumstances in Australia and India. The applicant told the Tribunal that in India he earned 50-60,000 rupees per month working as a registered pharmacist, which he estimated to be the equivalent of approximately $1,000 AUD per month.

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

26. The applicant told the Tribunal that he has worked in a restaurant in Australia. The issue of the applicant’s work history in Australia was of some concern to the delegate. According to the delegate’s decision record, the delegate was concerned that on 17 February 2016 the applicant had been paid a weekly wage of $951.46, on 24 February 2016 $969.23, on 2 March 2016 $714.60 and on 10 March 2016 $861.10. The delegate was concerned that the applicant may have been working more than 40 hours per fortnight, in breach of his visa conditions. The delegate was also concerned that the applicant’s work history suggested that he had been working as a cleaner when the applicant claimed to have developed a passion for food and to have been working as a kitchen hand. The Tribunal discussed this with the applicant who said that the amounts referred to related to a time when his course was not in session. The Tribunal accepts that the applicant has worked in Australia both as a cleaner and in a restaurant kitchen. The Tribunal concludes in relation to the applicant’s economic circumstances below.

27. The applicant told the Tribunal that his parents and grandparents continue to reside in India and that he maintains communication with his family through “Facetime everyday”. The applicant’s representative submitted that the applicant has only returned to India on one occasion due to the prohibitive cost of overseas travel. The Tribunal accepts this. Overall however, the Tribunal considers that over a substantial stay the applicant has been able to manage personal relations overseas by keeping in touch from Australia, and by visiting (for a period of 5 weeks between November-December 2015). The Tribunal does not consider the applicant’s personal connections overseas to be distinct incentive for the applicant to cease residence in Australia. The Tribunal formally put to the applicant his ‘movement details’ in accordance with section 359AA of the Act and this is discussed below.

28. The applicant is provided accommodation in Queensland by his sister and brother-in-law. The applicant told the Tribunal that his sister, who originally arrived in Australia as a student and who is now an Australian citizen, has two children aged six and three years respectively. He told the Tribunal that his sister has now lived in Australia for 6-7 years. The applicant told the Tribunal that he regularly cares for his niece and nephew. The applicant told the Tribunal that he is not paid to look after his niece and nephew but that he receives room and board instead. The Tribunal considers the presence of the applicant’s sister and her family in Australia, which provides emotional support for the applicant and subsidised accommodation, food, and daily support, a strong incentive for him to remain in Australia.

29. The Tribunal questioned the applicant about his plans for the future. The Tribunal was concerned that the applicant vacillated in his evidence. He initially told the Tribunal that “I want to finish my advanced diploma business administration, then hospitality” before applying for a job or “maybe go back to my country”. The Tribunal was concerned by this on two fronts. Firstly, the applicant was not enrolled in an Advanced Diploma of Business Administration but rather a Diploma of Hospitality Management and Advanced Diploma of Hospitality Management. The voluminous written material provided both to the Department and the Tribunal also made no reference to an Advanced Diploma of Business Administration. This caused the Tribunal to have concerns in relation to the applicant’s knowledge of his proposed study and associated education provider. The Tribunal normally would have expected that an individual in the applicant’s circumstances to be able to accurately recall the title of their present course. As such, the Tribunal has some concerns in relation to the applicant’s commitment to his studies. Secondly, on the applicant’s own testimony, he was unsure about leaving Australia. This caused the Tribunal to be concerned as to whether the applicant genuinely intends a temporary stay in Australia.

30. When the Tribunal questioned the applicant further, he said that the hospitality industry is in demand globally and that he may apply for jobs in different countries. When the Tribunal asked about his earlier “maybe go back to my country” answer, the applicant said that his preference was to stay in Australia if he could identify a “good future” and “good job opportunities” for himself. He told the Tribunal if his most recent visa application was granted he would most likely enrol in a bachelor level degree in hospitality.

31. Following further questioning from the Tribunal, the applicant said that he would like to complete the Advanced Diploma of Hospitality Management before looking for work in Australia and India. He told the Tribunal that working in Australia would be his “first preference”.

32. Following the applicant’s initial evidence, the Tribunal adjourned for a short break. Upon resuming, the applicant’s evidence vacillated from his earlier testimony. When the Tribunal asked the applicant how much he would expect to earn back in India, he said that he was “not sure about earning” and that because his parents have “good status” in India he will “definitely open a hotel” there. The Tribunal did not consider this evidence credible. When considered against the applicant’s earlier evidence, the Tribunal considers the applicant’s stated intention to open a hotel in India is nothing more than a recent invention proffered to lessen the impact of him earlier saying that his first preference is to work in Australia.

33. Following the applicant’s testimony concerning opening a hotel, the applicant restated that if he goes back, he will open a business. The Tribunal does not accept this.

34. The applicant’s representative told the Tribunal that the applicant hasn’t worked for one and a half years. The representative told the Tribunal that the applicant had been committed to his studies. When the Tribunal questioned the applicant about this, he said that he had actually been looking for work for six months. He confirmed that he would like to obtain part-time employment in a restaurant.

35. On the applicant’s evidence, he can earn a lot more in Australia compared to India (see paras 25-26 above). The Tribunal considers the applicant’s economic circumstances in Australia, specifically his capacity to earn Australian dollars in ordinary employment, presents a significant incentive for the applicant not to return to India.

36. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of his enrolment records from the Provider Registration International Student Management System (PRISM) database. For completeness, the Tribunal provided the applicant with a copy of his PRISM enrolment records. The Tribunal explained to the applicant what the PRISMs database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of it relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing. The applicant said that his academic progress has been impacted by issues with academic providers closing and withdrawing courses.

37. Adopting the procedure in section 359AA of the Act, the Tribunal also put to the applicant that it had on the Tribunal file a copy of his ‘movement details’. For completeness, the Tribunal summarised information from the applicant’s movement records for him. It outlined to the applicant the visas which he has been granted, including his visa conditions, and his arrivals and departures from Australia. The Tribunal confirmed with the applicant that he had remained onshore in Australia since May 2014, other than a short visit back to India on one occasion. The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained the consequences of it relying on the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to comment on or respond to the information. The applicant elected to respond at the hearing. The applicant confirmed that he has only returned to India on one occasion since coming to Australia. He restated that it was not his intention to stay in Australia and that he would like to complete his studies.

1. The Tribunal does not make any adverse findings against the applicant in relation to his compliance with visa conditions or prior immigration history. The applicant told the Tribunal that he does not have a visa history outside of Australia-India. The Tribunal accepts this and makes no findings concerning the applicant’s immigration history outside of Australia.

2. The Tribunal provided the applicant’s representative with an opportunity to address the Tribunal. The representative referred to:

   ·    the applicant’s problems with his English language skills and how this has impacted his study;

   ·    the prohibitive cost of the applicant visiting India;

   ·    the applicant’s work history, immigration history and stress levels;

   ·    the applicant’s previous compliance with his visa conditions; and

   ·    the applicant’s study history and academic progress.

3. The applicant’s representative told the Tribunal that he believed the applicant’s visa had been refused on the suspicion that the applicant had been working more than the hours permitted by his visa. The applicant’s representative said that in his belief the applicant is a genuine temporary entrant.

4. The applicant told the Tribunal that he developed friendships in Australia through his work in a restaurant. He told the Tribunal that he keeps in touch with his friends in Australia including through social media. The Tribunal is satisfied that the applicant has developed friendships in Australia and considers this social and emotional connection to Australia a strong incentive for him to remain here.

5. In accordance with the ministerial direction, the Tribunal questioned the applicant concerning any circumstances in his home country that may induce the applicant to apply for a student visa as a means of remaining in Australia indefinitely. The applicant told the Tribunal that there aren’t any reasons why he cannot return to India and that he does not have any issues concerning military service, political or civil unrest.

6. There is no relevant evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no findings concerning the applicant in that respect.

7. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. Overall however the Tribunal found the applicant’s testimony fluid, vague and unconvincing. This is not a case where an applicant has simply decided to change careers through a short VET course. The Tribunal is concerned by the amount of time the applicant has spent in Australia, almost four and a half years. The Tribunal considers the applicant’s present studies to be at a much lower level of education than what he has previously achieved. A university degree is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solve disparate challenges. The Tribunal is concerned that the applicant was already a university graduate before coming to Australia, and has chosen to study only trade qualifications in the VET sector over the last four years at a level well below his university accomplishments.

8. The applicant has completed nationally accredited trade qualifications in cookery and business. The Tribunal considers that the applicant’s present hospitality studies in the VET sector will only marginally improve his employment prospects in India. The Tribunal considers that the applicant’s present studies in the VET sector, and proposed further studies, offer limited incremental value when considered alongside the qualifications and experience that the applicant has already gained in Australia.

9. Having carefully considered the applicant’s oral testimony regarding his career aspirations, the applicant’s evidence appeared to be tailored to fit with his current course selection in Australia. That is not as it should be. If the applicant has career aspirations that are claimed to lead out of Australia, the courses selected should seek to serve that purpose, and not the other way around. Having supposedly abandoned his pharmacy career and developed a passion for food and hospitality, the Tribunal considers that if the applicant did have a plan to pursue a career outside of Australia, then he could have already left Australia to implement that plan.  

10. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia. In our view, the applicant demonstrated an intention to remain in Australia but did not articulate or suggest a lawful means of doing so outside of the student visa program. It follows that the Tribunal is concerned that the applicant proposes to use the student visa program primarily in order to maintain ongoing residence in Australia.

11. 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).

12. 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.

13. 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

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

    B. Cullen
    Member

    P. Wood
    Senior Member