Saini (Migration)

[2021] AATA 894

Saini (Migration) [2021] AATA 894 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paras Saini

CASE NUMBER:  1912761

HOME AFFAIRS REFERENCE(S):          BCC2018/5592194

MEMBER:Michael Biviano

DATE:15 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 15 January 2021 at 5:05 pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– application was not made more than 3 years after the cancellation of the visa – no compelling circumstances affecting the interests of Australia – waiver of the requirements of PIC 4013– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.217, Schedule 4, public interest criterion (PIC) 4013

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 Home Affairs on 7 May 2019 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 12 December 2018. 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.500.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant’s Bridging A (Class WA ) (subclass 010) visa had been cancelled on 7 March 2019 for working without authority and the applicant brought an application for a Student (Temporary) (Class TU) Subclass 500 visa on 12 December 2018 and the delegate was not satisfied that the applicant meets public interest criterion (PIC) 4013 set out in Schedule 4 to the Regulations, as the application was not made more than 3 years after the cancellation of the visa and the circumstances did not justify the grant of the visa within 3 years of the cancellation.

4. The applicant appeared before the Tribunal on 29 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts.

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 meets PIC 4013 and consequently satisfies cl.500.217.

9. Clause 500.217 of Schedule 2 to the Regulations provides that:

   500.217

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

   (3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

   (4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

   (5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

10. Clause 4013 of the PIC set out in Schedule 4 to the Regulations states:

    4013

    (1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

    (a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

    (b) the Minister is satisfied that, in the particular case:

    (i) compelling circumstances that affect the interests of Australia; or

    (ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa within 3 years after the cancellation or determination.

    (2) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

    (a) because the person was found by Immigration to have worked without authority; or

    (b) if the visa was of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass; or

    (c) if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule—because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or

    (ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

    (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m),(o), (oa) or (ob) applied to the person.

11. In assessing if the applicant has compelling circumstances affecting the interests of Australia, under policy there may be compelling circumstances affecting the interests of Australia if:

    ● Australia’s trade or business opportunities would be adversely affected if the person was not granted the visa;

    ● Australia’s relationship with a foreign government would be damaged if the person was not granted the visa; or

    ● Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

12. In assessing if there are compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, under policy there may be compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen if the applicant was not granted the visa because:

    ● A business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business;

    ● Civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness; or

    ● An eligible New Zealand citizen would be unable to finalise legal and property matters associated with divorce proceedings without the physical presence of the non-citizen in Australia.

13. In assessing if there are compassionate circumstances, under policy there may be compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the person was not granted the visa because:

    ● Family members in Australia would be left without financial or emotional support;

    ● Family members in Australia would be unable to properly arrange a relative’s funeral in Australia; or

    ● A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and is therefore subject to an exclusion period).

14. If there is such evidence, cl.4013(1) provides that PIC 4013 will nonetheless be satisfied if the Minister is satisfied that there are:

    a.Compelling circumstances that affect the interests of Australia; or

    b.Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    that justify the grant of the visa. This is known as the waiver of PIC 4013.

15. Policy provides that where, in a particular case, the exclusion period has arisen from departmental error or as an unintended consequence of exclusion provisions, surrounding circumstances may be considered to assess whether these are sufficiently compelling to warrant waiver.

    Circumstances of the applicant

16. The applicant is a 22-year-old Indian national who came to Australia on 30 October 2018 on a Tourist visa. He came to meet up with his sister and her family who were staying in Australia. On 12 December 2018, the applicant applied for a Student (Class TU Subclass 500) visa.

17. The Decision Record of the delegate of the Department of Home Affairs dated 7 May 2019, which was provided to the Tribunal by the applicant, confirms that the applicant made the application for the Student (Class TU Subclass 500) visa on 12 December 2018 (Decision Record).

18. The applicant currently resides in Australia on a Bridging visa (Class B) and has no work rights.

    Request for postponement

19. The applicant, prior to the hearing, on 22 May 2020, made an application to adjourn the hearing. The adjournment was sought on the following basis:

    We refer to the below invitation to attend a hearing scheduled for Friday, 29 May 2020 at 9.30 am, and request that this hearing be adjourned to a later date when the Tribunal is ready to once again recommence face to face hearings.

    We are instructed by the review applicant that he would like the opportunity to present his case in person, as opposed to the hearing being conducted over a telephone conference call. The review applicant submits that he will have a better prospect of a favourable outcome were he allowed to give full evidence of his case at a face to face hearing.

    Kindly confirm if the above request can be granted, and in the interim, please find attached the review applicant’s current Confirmation of Enrolment and records of previous studies as requested.

    We await your urgent advice.

20. The applicant did not nominate a timeframe within which to adjourn the hearing.

21. The High Court of Australia in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment of a hearing. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. In considering reasonableness, the Court considered the Tribunal’s statutory purpose to conduct its review in a manner which ‘is fair, just, economical, informal and quick’.

22. The Tribunal carefully considered the application to postpone the hearing and refused that application. The grounds for the postponing the hearing seemed to be based on the fact that it would be prejudicial to determine this application by a telephone hearing rather than in person. No timeframe was set for the adjournment and the appeal of the decision had been initiated with the Tribunal a year before the hearing. Further, there was no evidence to suggest that the prospects of success would be improved by a face to face hearing. It is quite common for these types of applications to be heard by the Tribunal by way of telephone hearing. In any event it is unclear when the Tribunal would revert back to face to face hearings for this type of application.

23. The Tribunal was not prepared to further delay the hearing of this application, which had been filed with the Tribunal on 22 May 2019, and refused the application for an adjournment and proceeded to hear this matter on 29 May 2020 for the following reasons:

    a.The whole history of the proceeding, which had been on foot for over 1 year;

    b.The amount of extra time sought was indeterminate and uncertain and was not reasonable, having regard to the statutory direction that the Tribunal conduct its review in a manner which ‘is fair, just, economical, informal and quick’;

    c.There was no indication that the Tribunal would be able to revert to face to face hearings in the near future and that it would prevent him from presenting evidence at the hearings;

    d.The applicant is unlikely to be able to further advance his case with the benefit of the requested postponement.

    Supporting documentation

24. Prior to the hearing, the applicant filed a significant amount of supporting documentation comprising:

    a.Confirmation of Enrolment (CoE) numbered B8EBCA16 to study Certificate IV in Automotive Mechanical Diagnosis from 11 June 2020 to 24 October 2020 at Acumen Institute of Further Education (AIFE);

    b.CoE numbered B8EBD318 to study Diploma of Automotive Technology from 7 November 2020 to 24 July 2021 at AIFE;

    c.Letter from Central Australian College dated 21 May 2020 confirming that the applicant had studied and completed a Certificate III in Light Vehicle Mechanical Technology from 17 December 2018 to 15 December 2019;

    d.Response to hearing invitation;

    e.Certificate III in Light Vehicle Mechanical Technology dated 11 January 2019 with academic results; and

    f.The submissions contained in the letter from Bentleys Barristers & Solicitors dated 28 May 2020 to the Tribunal with the applicant’s Statement of Purpose.

    g.Documents relating to the applicant’s family’s financial position including statement of assets, tax returns and bank statements; and

    h.Letter of Offer of employment from Jai Jyoti Industries (JJI) dated 17 May 2020.

    Cancellation of the Bridging visa

25. As at 7 March 2019, the applicant was staying in Australia on a Bridging Visa Class A (Subclass WA 010) pending the determination of his application for a Student visa..

26. On 7 March 2019, the applicant’s Bridging visa was cancelled pursuant to s.116 of the Act. It appears that he was in breach of his visa conditions for engaging in work in breach of such conditions.

27. The applicant gave evidence that his visa had been cancelled because he attended a car wash, where his friends work, to observe the business, and Immigration officers attended the car wash on the same day and questioned him and cancelled his visa on the basis that he was working without authority in breach of his visa conditions. He claimed that he was unable to properly explain his circumstances due to his poor communication skills.

28. On 19 March 2019, the delegate wrote to the applicant inviting him to comment on the cancellation of the visa and advising that he may be affected by a risk factor affected by PIC 4013, and that criterion must be satisfied in order to grant him a visa (Invitation). The Invitation gave the applicant 28 days to lodge a written response.

29. The applicant lodged a supplementary GTE Statement with the delegate in response to the delegate’s Invitation. The statement provided:

    This statement seeks to address the issue of my genuine intention to be a student in Australia

    I first arrived in Australia on a visitor visa. The purpose of my visit was to spend time with my sister and Australia and Victoria in particular. My travel itinerary was to conclude with my return to my home country of India.

    Whilst travelling, I had continual contact, via social media, of my friends, some of which are studying in Australia. After meeting up with friends, I explored the possibility of my own study visa in Australia to enhance my work skills and opportunity to gainful employment in India.

    I discussed my intention with my immediate family and they were very supportive of me attaining an internationally recognized qualification from Australia. Thus, with my family’s full support, I have decided to study in Australia.

    My family’s business is in the automotive industry and me obtaining a qualification as an automotive technician would service me and my family when I join the business and eventually take it over – as per my family’s ongoing intention.

    The benefit of my studying in Australia further includes my ties with Australia to build connections for import of automobile parts to India. Australia in renowned for producing parts for motor vehicles such as wheels for Ferrari and world leaders in brake pads and oil filters. Thus my purpose of learning motor vehicle parts and repairs in Australia will enable me to build networks of contacts in the parts industry form my family business.

    Expanding our family business into service and repairs is a natural progression for the business and I want it to grow to a large-scale business with various branches all operating under a high set of standards. I believe that the skills and knowledge that I hope to gain from the qualifications will work in the interest of the business and thus help me to become successful in my career.

    I have always been very determined to pursue my career in Automotive industry and this passion has grown even stronger after my arrival in Australia. Thus, I decided to study in Australia to benefit from the excellent Australian education system and applied for my student visa. I was very excited and overjoyed with the prospect of being able to upskill myself. I was highly energized with the inspiriting vibe of Melbourne to learn as much as I can. Meanwhile, I got an opportunity to witness the work culture here in Melbourne through few of my close acquaintance in Melbourne. I was very keen to learn about all industries related to the Automotive sector and to make future contacts for importing to India. I convinced the owner of the car wash to let me visit his site for couple of days and to understand the operations of the business. I felt that if I could involve myself in the operations of the business, I would benefit more and understand the inner workings of the business as well. The owner offered that I could train at his site so that I could learn all aspects of the business. I saw an opportunity to learn about the business and hopefully assess if such a business or some aspects of it would be viable back home. Since I came here on a visitor visa and am on bridging visa, I am not allowed to work, and I am fully aware of that. As I was financially well supported, there was no need for me to work. However, I was keen for opportunity to learn new skills.

    Therefore, I was just there to see and learn but, and definitely not to work as an employee. Coincidentally there was a site visit there by some Immigration officers who interviewed me. I explained my circumstances to the officers. Unfortunately, due to my poor communication skills I could not explain my situation well during the interview by ABF officers on 07 March 2019. Hence, I would like to explain myself and the grounds for me to be in Star Hand Carwash on that day. I am young, energetic and full of enthusiasm to do something and achieve my goals in life. I do not want to miss any chance to reach my goal hence, I grabbed this opportunity to observe and learn the nature of business and work culture. I accept the fact that my lack of communication in English has led us to this miscommunication which, I will improve by the time if given opportunity.

    My family are financially sound and are sponsoring the whole expenses of my studies and my stay in Australia. My parents have sufficient funds and source of income to cover my entire expenses. I have attached all the evidences of my parents’ and my uncle and aunt’s available funds and the source of income. I have also attached evidence of my father’s automotive related business for your reference.

    I plan to become a successful entrepreneur and there is no better place for me to achieve that than India. I would also love to provide new employment opportunities and help contribute towards the economic growth of my own country. India has a strong scope and opportunities in the automotive sector. India has been producing cars, bikes and other vehicles for a long time and are actively exporting overseas as well mainly in South Asia. Tata, Maruti Suzuki, Mahindra, Bajaj etc have become very popular brands in many countries. Automotive industry is a major booming industrial and economic force worldwide. There are a wide range of companies and organizations involved in the design, development, manufacturing, marketing and selling of various types of motor vehicles. It is one of the world’s most important economic sectors by revenue. The Indian auto industry is one of the largest in the world. The industry accounts for 7.1 percent of the country’s Gross Domestic Product (GDP). I strongly believe that students with international exposure and experience always have an edge in countries growing economy.

    I have seen my father’s passion and dedication for this industry, and I aspire to do the same and one day take business to the new heights of success. Upon completion of my studies, I will return home with a new perspective on culture, language skills, and a great education. The skills, experience and new cutting-edge ideas that I will learn will definitely help me grow and expand my father’s existing business.

    Coming from an Indian family, I value our family and our parents the most. It is my responsibility to look after my parents and the family business and I have always kept that in my heart. My sister is here in Australia, but the rest of my family is back home in India. I sincerely hope that I have explained myself and that you will agree with my reasoning and find me to be a genuine visa applicant. I have always followed and will follow all the conditions of my visa if it is granted. I will also uphold all the laws of Australia during my stay here. I sincerely hope that you will find me to be a genuine visa applicant and grant me a student visa. Thank you,

1. The applicant in evidence confirmed that:

   a.He arrived in Australia on 30 October 2018, to visit his sister and her family. While in Australia he met up with friends who had been studying in Australia.  At the expiration of the tourist visa he did not return home, but instead, on 12 December 2018, applied for a student visa and enrolled to undertake a Certificate III in Light Vehicle Mechanical Technology at Central Australian College, which he completed in December 2019;

   b.The applicant has enrolled in a Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology and these studies are to conclude in July 2021;

   c.The applicant gave evidence that his family operates a business in India that is involved in supplying automotive components and parts, which it both imports and exports, and that he was seeking to gain qualifications so that he could undertake automotive repairs and expand his family’s business;

   d.While in Australia the applicant claims he has not worked and he has been supported financially by his family and does not need to work;

   e.He claims he attended the Star Car Wash at Highpoint in about March 2019 with some friends who he claims do not work there, to see how it works and whether he could utilise that business model back in the family business in India;

   f.The applicant initially claimed he was there once and was there for no more than 1 hour, while shopping, and wanted to see the Tesla Car in the car wash. He claims he was standing around to observe but that he did not undertake training. Such evidence was inconsistent and could not be reconciled with the supplementary GTE Statement given by the applicant in which he claims to have a hands on role in the business, as follows:

   I convinced the owner of the car wash to let me visit his site for couple of days and to understand the operations of the business. I felt that if I could involve myself in the operations of the business, I would benefit more and understand the inner workings of the business as well. The owner offered that I could train at his site so that I could learn all aspects of the business.

   g.When he returns home to India, he has arranged employment at JJI, to work as an automotive technician from 17 October 2021, which he applied for while here in Australia, but the owner of JJI was a contact of his father. On his evidence he was not going to commence a car wash. It was unclear what he would learn from the business merely standing and observing the cars being washed.

2. The applicant’s evidence was somewhat vague, uncertain, and was, further, inconsistent with his supplementary GTE Statement. There was no corroborating evidence submitted from the applicant’s friends or representatives from the car wash, as to the circumstances of the applicant being at the car wash and what training he had undertaken, and whether it was in contemplation of performing paid or unpaid work, training or merely observing. 

3. The Tribunal is not satisfied, on the applicant’s evidence, that it substantiates that there was a departmental error in making an order cancelling the Bridging visa or this was an intended consequence of its decision.

   Is the applicant affected by a risk factor?

4. The applicant, in evidence, accepted his Bridging Visa Class A was cancelled on 7 March 2019, while his application for a TU 500 Student visa was before the delegate, and the application was not made more than more than 3 years after the cancellation of the Extended 417 visa.  In such circumstances, the applicant is affected by the risk factors set out in PIC 4013.

   Waiver of the requirements of PIC 4013

5. In ascertaining whether the requirements of PIC 413 may be waived, there needs to be either compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justifying granting the visa within this 3‑year period.

   Compelling circumstances affecting the interests of Australia

6. The applicant claimed at the hearing that there were compelling circumstances for the waiver of PIC 4013 because it will impact on his ability to:

   a.Complete his qualification and obtain employment at JJI, where he would look at seeking to trade with Australia in automotive components and use Australian automotive components;

   b.Learn about electric vehicles that would impact on reducing pollution in his own country and globally; and

   c.Correspond with future markets including Australia and assist in trade which would assist in the Australian national interest.

7. The difficulty with the applicant’s contentions and arguments is that the applicant is to commence employment JJI undertaking automotive repairs as a newly qualified automotive technician who is repairing vehicles, which means he will not be involved in international trade with Australia or sourcing components from Australia.

8. Further, having regard to the applicant’s evidence and submissions made on his behalf, there is nothing preventing him from conducting trade with Australia from India. His evidence was extremely general and vague as to how it would impact the Australian interest. There was no specific evidence as to how Australia’s trade or business opportunities would be adversely affected if he was not granted the visa and what significant benefit would be missed by Australia if his visa was not granted.

9. In any event, the PIC 4013 criterion expire 3 years commencing from the cancellation of the visa, which will expire on 7 March 2022.  The applicant will be at liberty at that time to reapply to study in Australia.

10. Accordingly, the Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia.

    Compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen

11. The applicant did not lead any evidence or argue that there were compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Accordingly, the Tribunal is not satisfied that such circumstances are made out.

    Conclusion

12. In the circumstances, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or there are compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, with regard to the applicant. The Tribunal is not satisfied the applicant meets PIC 4013.

13. Accordingly, as the Tribunal is not satisfied that the applicant meets PIC 4013, then it is not satisfied that the applicant meets cl.500.217 of Schedule 2 to the Regulations.

14. 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

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

    Michael Biviano
    Member