Ravinder Kumar (Migration)

[2018] AATA 5817

Ravinder Kumar (Migration) [2018] AATA 5817 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Ravinder Kumar
Mrs Rimpy
Master Aryaveer Kumar

CASE NUMBER:  1706338

HOME AFFAIRS REFERENCE(S):           BCC2016/4006843

MEMBER:Stephen Conwell

DATE:5 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 December 2018 at 3:42pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – not a Genuine Temporary Entrant (GTE) – GTE Statement submitted – application for two business nomination sponsorships refused – history of lack of academic progression towards a genuinely-held career path overseas – information provided by applicant not considered accurate – over a decade onshore – seeking to maintain ongoing residence indefinitely – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211-500.218, 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 20 March 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 November 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.

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 delegate was not satisfied the applicant is a genuine temporary entrant.

4. The applicant participated in a telephone hearing on 9 August 2018 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent.

5. Where used in this decision:

   a.COE refers to Confirmation of Enrolment;

   b.VET refers to Vocational Education and Training;

   c.The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection); 

   d.‘Direction 69’ or ‘the Direction’ refer 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 under the requirements of cl.500.212 of the Regulations.

8. 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.

9. The applicant provided a GTE statement to the Department (DIBP fols.27-29), stating in summary:

   ·       he came to Australia to study and fulfil his dream of starting his own business;

   ·       he commenced his studies in a Diploma of Community Work, but realised that starting a business requires many skills such as marketing and business management;

   ·       to gain ‘rounded’ skills he has completed qualifications in community welfare business, management and marketing and was enrolled in hospitality studies;

   ·       he developed an interest in hospitality and is keen to open his own restaurant;

   ·       he “can’t wait to finish [his] studies and go back to live with [his] family and to start [his] own business.”

   Summary of the delegate’s decision

10. According to the decision record:

    ·      The applicant arrived in Australia on 2 April 2008 on a TU 573 Higher Student visa, (however the Tribunal notes that he transferred to a TU 572 visa in 2010).

    ·      At the time of decision the applicant’s study history showed as follows:

    oCertificate IV in Spoken & Written English - 2008

    oDiploma of Community Welfare Work - 2010/2011

    oDiploma of Management - 2012

    oCertificate III in Business - 2013

    oDiploma of Business - 2014

    oCertificate IV in Marketing - 2015 Diploma of Marketing - 2016

    ·      The applicant had been granted five Student visas (apart from a work visa granted to him soon after arrival).

    ·      He had applied for two business nomination sponsorships (UC 457 visa) in June and September 2014; both applications were refused.

    ·      The delegate was not satisfied that the information submitted by the applicant regarding his work history in Australia was entirely accurate as it did not align with departmental information. 

    ·      The delegate was not satisfied that the applicant had been candid in his responses.

    ·      Having considered the length of time spent on shore (which was nine years at the time of decision) and other evidence, the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia.

11. The applicant submitted the following documents/evidence to the Tribunal at or after the hearing:

    ·       Statement of Purpose (Statement) by his representative dated 27 July 2018

    ·       COE for a Diploma of Hospitality Management between 28/04/2018 to 31/08/2018.

    ·       Certificates/transcripts for the applicant’s previous studies

    ·       Australian taxation assessments for the financial years, FY10 - FY16, inclusive.

    ·       Letter of employment dated 1 August 2018 from Laxmi’s Tandoori Restaurant.

12. The Tribunal has reviewed all the above material. 

    Does the applicant intend genuinely to stay in Australia temporarily?

13. 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 (GTE) 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.

14. 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.

15. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in India and in Australia, his immigration and study history and other relevant matters, including the delegate's concerns and findings summarised above.

    The applicant’s circumstances in the home country

16. The applicant’s circumstances in India are that his parents and younger sister continue to reside there. He claims that his family own a family home and farming land but provided no supporting evidence. Nevertheless the Tribunal is prepared to accept that the applicant’s parents do own their own home and some farming land, however it noting that the applicant provided no evidence of owning any real property or other substantial assets in his or his wife’s names.

17. The applicant mentioned at hearing that he has an uncle in India who is said to be a restauranteur. He claims to have been in discussions with this uncle regarding his own ambitions to own a restaurant. However no supporting evidence was submitted to the Tribunal In the absence of supporting evidence the Tribunal gives little weight to these claims.

18. ’The Tribunal takes into account the economic circumstances and political climate in the applicant’s home country relative to the economic and political conditions in Australia and finds that the disparity between the two offers a further incentive for him to seek to use the Student visa program to maintain ongoing residence in Australia.

19. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent him from returning to India and the Tribunal makes no findings against the applicant based on:

    ·      any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·      circumstances in the home country relative to Australia or any other country;  or

    ·      the applicant’s circumstances in the home country relative to others in that country.

    The applicant’s potential circumstances in Australia

20. The Tribunal has regard to the applicant’s potential circumstances in Australia. Over a decade onshore the applicant's economic circumstances in Australia appear to be well established and comfortable; his wife and son are with him. In fact his son was born in Australia and has spent most of his young life onshore. The Tribunal finds that during their lengthy period onshore, the applicants would, quite naturally, have become acculturalised to living in Australia and would now have an established network of friends through work, social and community activities.   

21. The Tribunal is of the view the applicant's family, social and economic circumstances in Australia, which have been established over a period in excess of 10 years, present as a significant incentive for the applicants to seek to maintain ongoing residence indefinitely. 

22. The Tribunal is not satisfied that the applicant is a genuine student seeking to progress academically and having a genuine intention to stay in Australian temporarily.

    The value of the course to the applicant’s future

23. The Tribunal has regard to the value of the course to the applicant’s future.  The applicant’s evidence is that all of his studies onshore, though varied, add distinct value to his career goal of opening a restaurant upon his return to India.

24. In his GTE Statement of Purpose tendered to the Department, the applicant expresses a desire to acquire (in addition to in-depth knowledge of business) “a diversified set of skills to be successful in the world of business. Therefore I have chosen to study marketing.”  The Tribunal finds the GTE Statement to be composed of generic statements and bromides; it does not articulate a clear study path or describe a sufficiently clear future plan to which that path should lead.

25. The Tribunal observed that by 2014 the applicant had diplomas in both management and business; in 2016 he added a Diploma of Marketing to his qualifications. When asked at hearing why he did not consider departing Australia at that point with three qualifications, he said it was then that he spoke to his uncle about the possibility of a career in hospitality. The Tribunal gives little weight to this statement. It would appear to the Tribunal that by 2016 the applicant had acquired enough skills to leave Australia. He had marketing, management and business skills and qualifications and could have embarked upon a career in any one of those fields. 

26. At Hearing the applicant was asked to elaborate on the details of his overseas career plan.  He stated that he hoped to be mentored by his uncle and eventually open his own restaurant on his return to India.  Beyond these general statements the applicant was unable to provide further details on the set-up costs or business plans or strategy for such a venture. The Tribunal is not persuaded that the applicant’s stated future plan of opening his own restaurant is a well-developed or genuinely held career or business goal.

27. Whilst a change of career is possible at any stage in a person’s life, and indeed Direction 69 encourages decision-makers to accommodate reasonable changes to an applicant’s career plan, the Tribunal finds that that the applicant’s late change of study into hospitality is more likely to be motivated by migration and visa considerations, rather than because the applicant had a genuine ‘change of heart’ regarding his career.

28. The Tribunal accepts that studying in Australia requires a considerable financial investment by an overseas student; however having made that financial commitment to study in Australia, a genuine student is expected to study in a manner which indicates academic progression, particularly since by doing so, the overseas student can achieve his or her study outcomes in the most timely and cost-effective manner

29. On the whole, the Tribunal finds the applicant’s evidence to be unsatisfactory and unconvincing; his study history indicates a lack of academic progression towards a genuinely-held career path overseas.  On the contrary, the applicant’s study choices appear to be opportunistic and self-serving.

    The applicant’s immigration history

30. The applicant arrived in Australia more than 10 years ago. The delegate notes that in 2014 the applicant made two applications for a business sponsorship nomination for two different nominated positions. Both were refused. The delegate found that the applicant mentioned in his earlier Student visa application that he did some part-time work for one of the employee sponsors, however he failed to mention this fact in his most recent visa application. Further departmental information via VEVO[1] checks revealed that several prospective employers had been checking the applicant’s visa status. This was at odds with the applicant’s current Student visa application which omitted to list any of his work experience whilst onshore. Overall the delegate found that the applicant had “not been candid in [his] responses.”

    [1] the Department’s online visa entitlement service

31. The applicant has been in Australia on temporary visas for over 10 years. The Tribunal accepts that some educational and career pathways require many years of study, however on the evidence in this case, the Tribunal is not satisfied that the applicant’s stated future plans fall into this category. Overall, it is difficult to reconcile his extensive proposed stay onshore with his claim that he is a genuine temporary resident. Rather, the significant period of time that he has spent in Australia since his initial arrival suggests that his potential circumstances in Australia including his periods of part-time employment outweigh any incentive he may have to depart.

    Any other relevant matters

32. There are no other relevant matters.

    Conclusion on cl.500.212

33. In weighing up the evidence the Tribunal is not persuaded by the applicant’s stated claim to be a genuine student intending to reside temporarily in Australia and having strong ties to his home country. The Tribunal finds the applicant’s potential circumstances in Australia, his study history and his immigration history,  show the applicant to be, not a genuine student and genuine temporary entrant, but rather someone who is using the Student visa program to maintain residence in Australia indefinitely.

34. 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).

35. Therefore 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.

36. 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.

    Dependent applicants

37. The dependent applicants Mrs Rimpy and Master Aryaveer Kumar are members of the applicant’s family unit. They each must satisfy the requirements of cl. 500.311.

38. As the applicant does not meet the criteria for the grant of the visa, the Tribunal must also affirm the decision to refuse the grant of a Student visa to each of the dependent applicants, since they each fail to satisfy cl. 500.311.

    DECISION

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

    Stephen Conwell
    Member