RANJEET SINGH (Migration)

[2019] AATA 1890

RANJEET SINGH (Migration) [2019] AATA 1890 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RANJEET SINGH

CASE NUMBER:  1719813

DIBP REFERENCE(S):  BCC2017/2549807

MEMBER:Roger Maguire

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 April 2019 at 12:42 pm (QLD time)

DATE OF WRITTEN RECORD:                7 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 07 June 2019 at 11:51am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – applicant did not satisfy requirements – not a genuine student – personal ties to India not sufficient – applicants earnings is a financial tie – not satisfied applicant intends to genuinely stay in Australia as a student – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211-500.218

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 18 August 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 18 July 2017.  At the time of application, class TU contained two subclasses: Subclass 500 and Subclass 590.  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 visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant provided the Tribunal with a copy of the delegate’s decision record dated 18 August 2017. The Tribunal is not bound by the delegate’s decision record, but may have regard to it. The Tribunal also had access to the relevant file of the Department of Immigration and Border Protection. The applicant appeared before the Tribunal on 12 April 2019 to give evidence and present arguments.

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

6. The criteria for a Subclass 500 student visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by the applicant. The issue in the present case is whether the applicant is a genuine temporary entrant.

7. 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.

8. In considering whether the applicant satisfies clause 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 section 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 applications for an Australian visa or for visas to other countries, and previous travel to Australia or other counties, 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. 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.

9. The Tribunal had before it the decision record referred to above.  Salient points arising from that record include the applicant entered Australia on 12 March 2014 on a Student visa TU 573 granted on 27 February 2014, valid until 30 August 2017, and has since held either student visas or associated bridging visas.  The Student visa TU 573 was granted to the applicant to undertake a Certificate IV in Business followed by a Diploma of Business and a Bachelor of Business.  The visa was subject to conditions 8516 (continue to be a person who would satisfy the primary condition for the visa) and 8202 (remain enrolled and achieve satisfactory course attendance and progress). 

10. The applicant completed a Certificate IV in Business and then a Certificate IV in Small Business, but never commenced a Bachelor of Business, and in doing so was in possible breach of condition 8516.  PRISMS records indicated that the applicant had been enrolled to undertake a Bachelor of Business, an Advanced Diploma of Business, a Diploma of Business, an Advanced Diploma of Management (which had been cancelled), an Advanced Diploma of Leadership and Management (which had been finished), a Diploma of Management (which had been finished), a Bachelor of Business (which had been cancelled), a Certificate IV in Small Business Management (finished), a Diploma of Business (which had been cancelled) and a Certificate IV in Business (which had been finished).  At the time the applicant was proposing to study a Diploma of Business followed by an Advanced Diploma of Business, and then a Bachelor of Business which would extend his stay in Australia to over eight years.

11. On 14 March 2019 the applicant was sent a written invitation to provide information about his entry and stay in Australia as a student.  In his response to a request for student visa information, herein after referred to as the response, delivered on 11 March 2019 which the applicant declared to be complete and correct, the applicant left many sections blank but disclosed, among other things:

    ·the applicant first arrived in Australia on 12 March 2014,

    ·the applicant visited his family for 20 days in February 2018,

    ·the applicant had no work experience prior to coming to Australia and no work or expenses in Australia; 

    ·the applicant had assets worth $385,726 in India, 

    ·the applicant had no pending visa applications, 

    ·the applicant held a current CoE;

    ·the applicant provided no details of community ties in India or in Australia; and 

    ·the applicant said he had no concerns about military service or political or civil unrest in his home country.

12. The applicant also provided the Tribunal with a statement from himself and various documents evidencing current enrolment, educational achievements prior to coming to Australia and since coming, as well as evidence of his father’s financial worth and an affidavit by his father as to the interest the applicant will take upon his father’s death.  The Tribunal has considered all of this material.

    The applicant’s circumstances in his home country. 

13. In his statement to the Tribunal, the applicant explained his reasons for studying in Australia, particularly the international recognition of Australian qualifications and the advantages which they give compared to the difficulty of gaining entry in academic institutions in India.  The applicant also spoke of the success his friends have enjoyed after studying in Australia. 

14. At the hearing, the applicant was asked what personal ties he has to India, and he said his father is a farmer and mother is a housewife and brother owns a small grocery shop.  His sister is studying in Australia and living in Armadale.  The applicant confirmed that he has only spent 20 days in the last five years in India.  The applicant was asked about his personal, economic and community ties and circumstances in India, and said he has no present economic or community ties to India.  The Tribunal asked the applicant what work he had done in India prior to coming to Australia and how much he had earned.  The applicant said he had never had a job in India prior to coming to Australia. 

15. The applicant was asked why it was necessary for him to do his current course in Australia when similar courses were bound to be available in India and were obviously acceptable to the local job market.  The applicant said that he lived in a rural area and he had to leave it to study, and he preferred to come to Australia rather than just shift towns.  He said that he had not looked for other courses in India. 

16. 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 in that respect.

    The applicant’s circumstances in Australia. 

17. The Tribunal asked the applicant what family, community or other ties he has which would be a strong incentive to remain in Australia.  The applicant says he sees his sister in Armadale every two or three months and he also has a cousin in Gladstone, and he comes to Brisbane every second week and the applicant goes there on holidays. 

18. The applicant was asked about his assets in Australia and said he only has a car, which he said was worth about $3,000.  The applicant was asked about his work and earnings since coming to Australia and he said he works as a supervisor with a cleaning company and he earns $450 per week.  He has been in that job for over a year, but has been working as a cleaner with another company for three years prior to that, making similar money.  The applicant was asked what he could expect to earn doing comparable work and hours in India and he said about $200 per month.  The applicant said with his current qualifications, he could not expect to earn more than $200 per month in India.  The applicant agreed with the suggestion by the Tribunal that he could earn substantially more in Australia than he could in India with his present and proposed qualifications.

    The value of the current course. 

19. In his statement to the Tribunal, the applicant said that he had done research on the internet and found that the Bachelor of Business degree develops the knowledge and skills that employers want, and there are many global companies offering graduates good salary packages. The applicant said that after he completes his study, he will return to his hometown and look for work with a big company, and he listed a range of positions for which he might qualify. 

20. The Tribunal asked the applicant if the Bachelor of Business is so important to help him to obtain employment or improve his employment prospects in his home country, why he never commenced studies in it five years ago, when his enrolment was cancelled for non-commencement of studies. 

21. The applicant said he wanted to do management first.  The Tribunal further asked the applicant if the Bachelor of Business is so important to him to help him obtain employment or improve his employment prospects in his home country, why has he allowed four years to pass since his last enrolment in it before having another attempt. 

22. The applicant again said that he wanted to learn how to manage before studying business.  The Tribunal asked the applicant what specific job he could get in India with his current qualifications, leaving aside his current study, and the applicant said he could get a job as an administrator or team leader and earn $600 to $800 per month.  The Tribunal asked the applicant what job he could hope to get in India after he completes his current study.  The applicant said he is planning to start a cleaning company with his father in a big city like New Delhi.  The applicant said as an employee in a cleaning company he might earn $400 per month.  The applicant agreed that he could earn more than this with his current qualifications as an administrator or team leader.  The applicant said he and his father have not done any financial projections on what the business might earn.

23. Having regard to the value of the applicant’s proposed course to his future, adopting the procedures in section 359AA, the Tribunal put to the applicant that the evidence before the Tribunal showed that he had originally entered Australia to study, amongst other things, a Bachelor of Business, which he enrolled in but failed to commence in 2015 and did not bother to enrol in again for four years, and this was a matter which might raise doubts in the Tribunal’s mind as to whether the Bachelor of Business would assist him to obtain employment or improve his employment prospects in his home country.  The Tribunal further explained that if the Tribunal so finds, it might be all or part of the reason for finding that the applicant is not a genuine applicant for entry and stay as a student, and thus affirming the decision under review.  The applicant confirmed that he understood this and was asked to comment or respond, or to request additional time before doing so if he so desired.  The applicant said that he changed his plans to study management because he needed this experience before studying a Bachelor of Business.

24. Having regard to the fact that the applicant enrolled in but failed to commence a Bachelor of Business in 2015 and did not bother to enrol in the course again for four years, the Tribunal finds that it doubts whether the Bachelor of Business degree will assist the applicant to obtain employment or improve the applicant’s employment prospects in his home country. 

    Applicant’s immigration history. 

25. With regard to the applicant’s immigration history, following the procedures in section 359AA, the Tribunal put to the applicant that he entered Australia on 12 March 2014 on a Student visa TU 573 visa to study, amongst other things, a Bachelor of Business, but he never complied with conditions 8202 and 8516 of his visa.  The Tribunal explained to the applicant that this was information which, if so found and relied upon by the Tribunal, might be all or part of the reason for finding that the applicant was not a genuine applicant for entry and stay as a student and therefore affirming the decision under review.  The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.  The applicant elected to respond.  The applicant said he was struggling to understand, and cancelled and enrolled in another college. 

26. Regarding the applicant’s circumstances in his home country, adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that the fact that he has only spent 20 days in India in the last five years might lead the Tribunal to find that whatever the strength of his personal ties to India, they are not sufficient to present as a strong incentive to return to India, and that this might be all or part of the reason for the Tribunal finding that he is not a genuine applicant for entry and stay as a student, and consequently affirming the decision under review, which would mean he would not be granted a student visa.  The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.  The applicant said he would reply.  The applicant said that after he enrolled in a college, he was told that he could not return to India before he had a degree, and as he was not doing a degree he could not return until after he had a COE for the Bachelor of Business.

27. Having regard for the fact that the applicant has only spent 20 days in India in the last five years, the Tribunal finds that whatever the strength of the applicant’s personal ties to India, they are not sufficient to present as a strong incentive for him to return to India.  This weighs against the applicant. 

28. Regarding the applicant’s circumstances in his home country, adopting the procedure in section 359AA, the Tribunal put to the applicant that the disparity in the applicant’s earnings in Australia compared to his prospective earnings in India could present a significant incentive not to return to India, and if the Tribunal so found, that might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, and that this might be all or part of the reason for affirming the decision under review.  The applicant confirmed that he understood this and was invited to respond or comment or seek more time before doing so.  The applicant said he would reply.  The applicant said that after returning to India, he does not intend to be an employee for long, just enough to get experience and then start his own business. 

29. The Tribunal has considered the applicant’s response and finds it unpersuasive as there is no evidence of any financial projections and there is no evidence of sufficient planning or funding to establish a business.  The Tribunal finds that there is a significant disparity between the applicant’s earnings in Australia and his prospective earnings in India, and that this presents as a significant incentive for the applicant not to return to India.

30. Regarding the applicant’s circumstances in Australia, adopting the procedure in section 359AA, the Tribunal put to the applicant that the disparity in the applicant’s earning in Australia compared to his prospective earnings in India could present a strong incentive to remain in Australia, and if the Tribunal so found, that might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, and that this might be all or part of the reason for affirming the decision under review.  The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.  The applicant said he would reply.  The applicant said he was keen to run his own company, but will not work for money, rather for experience which will help him start his own business.  The Tribunal finds the applicant’s response to be unresponsive to the proposition raised, and based on the applicant’s evidence regarding the disparity of his earnings in India and Australia, the Tribunal finds that the applicant’s earnings in Australia is a financial tie which presents a strong incentive for him to remain in Australia.

31. The Tribunal finds that there is no evidence of any other relevant matters before the Tribunal, and on the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily as a student. 

32. Accordingly, the applicant does not meet clause 500.212(a) of Schedule 2 to the Regulations.

33. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212. 

34. 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. 

35. Accordingly, the decision under review must be affirmed. 

    DECISION

36. The Tribunal affirms the decision under review.

    Roger Maguire
    Member