Rupinder Singh (Migration)

[2018] AATA 4509

Rupinder Singh (Migration) [2018] AATA 4509 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Rupinder Singh
Mrs Sandeep Kaur

CASE NUMBER:  1709000

HOME AFFAIRS REFERENCE(S):           BCC2016/3580220

MEMBER:Stephen Conwell

DATE:3 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 October 2018 at 9:13am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – familial assets in home country – disparity in economic and political circumstances – recent departure of immediate family – comfortable working life – breach of no work condition – limited value of new enrolment – array of VET qualifications – study gap – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
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 20 April 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 27 October 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 appeared before the Tribunal on 2 October 2018 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent.

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

6. 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.

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 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.

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.

   s.359AA

10. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant information from the Provider Registration and International Student Management System known as PRISMS. The Tribunal explained:

    ·      that this information is relevant to the review because, when considered alongside all the other information before the Tribunal it could have reason to believe that the applicant was seeking to circumvent the ordinary migration program by using the Student visa program as a means to maintain ongoing residence in Australia;

    ·      that if it relied on this information it may lead it to believe that he did not intend to stay in Australia temporarily, and did not meet cl.572.223(1)(a). If the Tribunal finds this to be the case, it would be the reason or a part of the reason for affirming the decision that is under review.

11. The applicant was informed that he could comment or otherwise respond to the information or that he may seek additional time to comment or respond to the information.

12. The applicant confirmed that he understood the relevance of this information to the process. He requested and was granted ten minutes in which to review the information and discuss it with his representative, after which time he agreed to discuss the PRISMS information during the Hearing.

13. The applicant provided a GTE statement to the Department (DIBP fol. 60), stating in summary:

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

    ·       starting a business requires many skills such as marketing, business, management and investment;

    ·       to gain all the necessary skills he has completed qualifications in hospitality, business, management and marketing;

    ·       he had to defer some study due to his “health issues” but he continues to persevere in his studies;

    ·       he wishes to complete the Advanced Diploma of Leadership and Management to “enhance my skills and knowledge of leadership strategies.”  After completing this course he intends to return to his home country to start his business.

14. The applicant submitted the following documents/evidence to the Tribunal on 2 October 2018:

    ·       Statement of Purpose (Statement) by his representative

    ·       applicant’s Passport - bio data page 

    ·      COEs and/or academic transcripts for the courses listed in the table below, with the exception of:

    oAdvanced Diploma of Management (15/07/2013 – 04/07/2014) – confirmed by PRISMS record *

    oDiploma of Marketing (16/03/2015 – 27/12/2015) – confirmed by PRISMS record *

    oAdvanced Diploma of Marketing (25/01/2016 – 15/01/2017) – confirmed by PRISMS record *

Course Name	Institute Name	Date From	Date to	Remarks
Certificate III Commercial Cookery	AVETA	21 Sept 2009	06 Oct 2010	Completed
Diploma of  Hospitality	AVETA	06 Sept 2010	12 June 2011	Completed
Certificate IV in Business	AVETA	03 Oct 2011	01 April 2012	Completed
Diploma of Management	AVETA	25 May 2012	18 Nov 2012	Completed
Advanced Diploma of Hospitality	AVETA	14 Jan 2013	23 June 2013	Completed
Advanced Diploma of Management *	AVETA	July 2013	July 2014	Completed
Diploma of Marketing *	16 Mar 2015	27 Dec 2015	Completed
Advanced Diploma of Marketing *	Della International College	25 Jan 2016	15 Jan 2017	Completed
Advanced Diploma of Leadership and Management	Gen Institute	10 Oct 2018	07 Oct 2019	Current enrolment

1. The applicant also completed a GTE questionnaire prior to the Hearing.

   Summary of the delegate’s decision

2. According to the decision record:

   ·      The applicant arrived in Australia on 23 June 2009 on a TU 572 Student visa.

   ·      PRISMS indicated that the applicant has been enrolled in a series of low value, inexpensive courses in a range of different fields for some eight years onshore and not progressed academically past the VET sector level.

   ·      The applicant has sought further enrolment not for the purpose of academic development leading to career opportunities in his home country or elsewhere, but rather to remain in Australia for an extended period for the purposes of employment and examining other migration pathways.

   ·      This finding is supported by the applicant’s inclusion as the nominated employee for a Temporary Business Entry Nomination application lodged on 30 September 2016.

   ·      The applicant has not offered substantial justification to undertake further study onshore in an Advanced Diploma of Leadership and Management particularly given that he had previously completed an Advanced Diploma of Management in July 2014.

   ·       Little weight was given to the applicant’s stated career goal to open a restaurant in his home country as the applicant has provided no detail regarding what type of business he is planning to establish, how such a venture will be undertaken and what steps have been taken to initiate such a project.

   ·      Upon considering all the evidence the delegate found that:

   o   study and academic progress were not the applicant’s main focus in Australia;

   o   the course of study proposed by the applicant lacked apparent value to his future which indicates that he does not genuinely intend to stay in Australia temporarily;

   o   she was not satisfied that the applicant has a genuine intention to stay temporarily in Australia.

   Does the applicant intend genuinely to stay in Australia temporarily?

3. 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.

4. 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.

5. 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, in Australia, his immigration and study history and other relevant matters, including the delegate's concerns and findings summarised above.

6. The applicant’s circumstances in India are that his extended family continues to reside there. Apart from his parents he has two sisters in India. Until last month his wife and young son resided with him in Australia, however they departed for India a few weeks ago, partly because of his wife’s pregnancy, and also because the son had not been included on the applicant’s latest visa application and therefore no longer held a valid visa for Australia.

7. The GTE Statement refers to the applicant having “substantial assets in his home country.” These include a family home, a piece of land and two plots. No evidence was tendered regarding these assets and the applicant’s oral evidence confirmed that no such assets are in his or his wife’s name – they are family assets to which he and his siblings have an entitlement to. Despite the lack of supporting evidence the Tribunal accepts that the applicant’s family has property and other assets in India, however it appears that neither the applicant nor his wife have property assets of their own in India. The Tribunal is not persuaded that the applicant’s  familial assets in India are sufficient incentive for him to wish to return there.

8. 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.

9. 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.

10. The Tribunal has regard to the applicant’s potential circumstances in Australia.  According to his oral evidence:

    ·      His wife joined him in 2014 and she and their three year old son have been with him onshore until a few weeks ago.

    ·      He has no other family in Australia; he has friends here but has no strong community ties within the local Indian or Sikh community. 

    ·      He communicates with his family several times a week by phone and social media.

    ·      He currently works as a truck driver ‘as needed’ for 20 hours per week; he is paid as a part-time employee and pays tax on his wages.

    ·      He previously worked in restaurants but found it difficult to maintain work in that sector.

    ·      He did apply as a nominated employee on a Temporary Work visa but  claims to have withdrawn that application.

11. Whilst the applicant now has no apparent close personal ties in Australia, that has been a recent development, as his wife and child left for India in early September 2018; prior to that, his wife had been with him since 2014 and their son was born in Australia in 2015.

12. The Tribunal therefore gives little weight to the fact that the applicant’s immediate family is now in India, since that is only a recent development which came about partly through the oversight in not including the child on the applicant’s current visa application.

13. The Tribunal finds that the applicant has established a comfortable working life in the nine years he has been onshore and his continuing employment and the possibility of other migration pathways appear to be further incentive for the applicant to seek to extend his stay in Australia.

14. The Tribunal has regard to the applicant’s study history and to the value of the proposed course to his future. The Tribunal observes that the applicant has made distinct changes to his study and proposed career objectives numerous times: from cookery to hospitality, business to management and most recently, to leadership and management. This casts doubt on the value of all of the courses and associated career plans previously claimed by the applicant.  Direction 69 indicates that reasonable changes to career plan should be accommodated.  The Tribunal considers that the applicant’s conduct displays a pattern of changes which is now a clear trend going beyond the changes contemplated in Direction 69.

15. The applicant claims that it is and always has been his proposition that he wished to acquire skills, knowledge and qualifications in Australia that he would bring offshore and put to use. As discussed at hearing, the Tribunal considers that objectively the applicant had more than sufficient skills, knowledge and qualifications to have confidence to embark upon the opening and running of a restaurant in India, or elsewhere.

16. His Advanced Diploma of Hospitality prepared him to run and operate a hospitality establishment such as a restaurant.  His advanced diplomas in management and marketing added those additional skills to his suite of qualifications.  By July 2014 by which time the applicant had acquired Advanced Diplomas of Management and Hospitality, the applicant had more than sufficient skills, knowledge and qualifications for the plan that he claimed for himself there.

17. Despite this, the applicant did not yield to his incentives to return to India.  He applied for another student visa and proceeded to complete and Advanced Diploma of Marketing –a qualification which the Tribunal is not persuaded adds significant value to his previous qualifications proposed. Nevertheless having completed the Advanced Diploma in Marketing in January 2017 the applicant again declined the opportunity to quit Australia to embark upon the hospitality career that he states is the goal to which his studies are directed. Instead he enrols in yet more study onshore – an Advanced Diplomas of Leadership and Management.

18. As discussed at hearing the Tribunal finds this latest enrolment to have limited incremental additional value to the applicant’s future plan when placed next to the array of VET qualifications he already has, in particular the Advanced Diploma of Management which he completed only four years ago in 2014.

19. At hearing the applicant was unable to satisfactorily explain the differences between the Advanced Diploma of Management course he completed in July 2014 and his current enrolment, other than to say that the latter offered ‘leadership training’.  When the Tribunal pointed out that according to the Commonwealth government training website, the current course appears to simply be the latest iteration of the Advanced Diploma of Management that he had completed in 2014, the applicant did not offer a satisfactory response, other than to admit that both courses had a number of similar or overlapping subjects.

20. The Tribunal noted that according to his PRISMS record, the applicant, upon completing the Advanced Diploma of Marketing on 15 January 2017 was then enrolled in the Advanced Diploma of Leadership and Management which, had he completed the course, was to run to 23 February 2018.  The PRISMS record shows that the applicant cancelled his enrolment in the Leadership and Management course on 27 February 2017, a month after completing the Advance Diploma of Marketing.

21. The applicant’s oral evidence was that he cancelled the course because of the decision to refuse his visa application.  When the Tribunal pointed out that he had cancelled the course to months before the delegate’s decision on 20 April 2017, the applicant had no satisfactory response. Had he not cancelled his enrolment in February 2017, the applicant might have completed the course in February 2018. In the absence of a satisfactory explanation, the Tribunal finds that by cancelling the course (to which he now seeks re-enrolment), the applicant embarked upon a study gap of some 19 months, which ended by his current enrolment a few days before the scheduled hearing. The Tribunal finds the applicant’s conduct is not indicative of a genuine student seeking to progress academically.

22. The Tribunal has regard to the applicant’s immigration history. In his oral evidence the applicant stated that he currently works part-time as a truck driver. The Tribunal pointed out that he was granted a Bridging visa C on 27 October 2016, which allowed him full permission to study however he was prevented from engaging in work (Condition 8101).

1. As a consequence of cancelling his enrolment in the Leadership and Management course, the applicant was not enrolled in a course of study between 28 February 2017 and 27 September 2018, a study gap of approximately 19 months.  At hearing the applicant confirmed that during this time he continued to accept part-time work as a truck driver.  The Tribunal pointed out that by doing so, and continuing to do so, the applicant was, and continues to be, in breach of condition 8101 - No Work – attaching to his Bridging visa.  Further, he elected not to enrol in study whilst on a Bridging visa, even though he had full permission to do so.  In response the applicant claimed to have received erroneous migration advice from his previous representative with regard to the visa conditions attaching to the Bridging visa.

2. The Tribunal considers that it is a simple and uncomplicated step for a motivated student who intends to acquire skills and knowledge during a temporary stay in Australia to clarify whether study rights are held; for example, by making a simple call to the Department, or consulting the Department’s online visa entitlement service. The Tribunal considers that by not questioning the migration advice he may have received making his own enquiries, the applicant has demonstrated a lack of interest in study entitlements which casts doubt on the value of the courses proposed to the applicant’s future. 

3. Nor does the Tribunal accept that the applicant was prevented from study by education providers because of his visa refusal.  The study then proposed by the applicant is abundant in the VET sector and if one provider were reluctant to allow the applicant to study after having been refused the visa, the Tribunal would expect a motivated student to make enquiries of the many other providers offering. Indeed, the applicant managed to enrol in this current course a few days before the hearing, notwithstanding that he remains on a Bridging visa.

4. The Tribunal observed that by working, he has been in breach of his Bridging visa conditions, which has a “No Work” condition attached.  The applicant admitted to having engaged in work as a part-time truck driver but seemed not to appreciate the gravity of his non-compliance. The Tribunal observed that by working in contravention of his Bridging visa conditions and by not studying, when permitted to do so indicate that the applicant has shown a disregard for the conditions attached to his visa. This is pertinent to the question of whether he is likely to comply in future with any visa conditions should a Student visa be granted to him.

5. 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 immigration history, including his efforts in applying as a nominated employee on a Temporary Business Entry visa in September 2016, suggest that the applicant is not a genuine student intending to progress academically, but rather someone who is using the Student visa program to maintain residence in Australia.

6. 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).

   Does the applicant intend to comply with visa conditions?

7. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

8. On 27 October 2016 the applicant was granted a Bridging visa C, allowing him full study rights, although it was not compulsory to do so. However condition 8101 - No Work, prohibited the applicant from engaging in work.

9. The applicant gave evidence that whilst on the Bridging visa he has worked, and continues to work, as a part-time truck driver. The applicant appeared not to appreciate the gravity of his ongoing breach of Bridging visa condition 8101.

10. The applicant did not provide a satisfactory explanation for this breach of a condition attached to his Bridging visa. The Tribunal finds the applicant was in breach of Condition 8101 in the period of his Bridging visa.

11. On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with any conditions subject to which a visa may be granted, as required by cl.500.212(b).

    Conclusion on cl.500.212

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.

    Secondary applicant

14. The dependent applicant, Ms Sandeep Kaur is the wife of the applicant and a member of his family unit. She must satisfy the requirements of cl. 500.311.

15. 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 the dependent applicant, as she does not satisfy cl. 500.311.

    DECISION

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

    Stephen Conwell
    Member