Sandeep Kumar (Migration)

[2019] AATA 6571

Sandeep Kumar (Migration) [2019] AATA 6571 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep Kumar
Mrs Manju Rani

CASE NUMBER:  1731496

DIBP REFERENCE(S):  BCC2016/2143205

MEMBER:Adrienne Millbank

DATE:5 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 05 July 2019 at 4:11pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – genuine intention to stay temporarily – multiple low-level courses in inter-related subjects – non-completion or cancellation of some courses – value of further study to future employment or business – use of student visa to maintain residence and work – credibility – personal and family circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 573.223(1)(a), 573.314

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a Delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 23 June 2016 and the Delegate decided to refuse to grant the visas on 28 July 2016.

2. The first-named visa applicant (the applicant) is a 38 year old Indian national who first arrived in Australia on 11 August 2009 on a Student (Subclass 572) visa. The second-named visa applicant is his wife, whom he married in India in 2012. The parties have a two and a half year old daughter born in Australia in 2016, who is not included in the review application.

3. The applicant’s Provider Registration and International Student Management System (PRISMS) records show that he has enrolled, in some cases more than once, in the following courses: General English; Certificate III in Hospitality (Patisserie); Diploma of Hospitality; Diploma of Management; Advanced Diploma of Management; Advanced Diploma of Hospitality Management; Diploma of Project Management; Certificate IV in Business; Diploma of Business; Diploma of International Business; Advanced Diploma of Business; and Bachelor of Business.   

4. Evidence was provided that the applicant has fulfilled the requirements for: a Diploma of International Business; a Diploma of Business; a Certificate IV in Hospitality (Commercial Cookery); an Advanced Diploma of Management; a Certificate IV in Business; a Diploma of Management; a Diploma of Hospitality, and an Advanced Diploma of Business.  

5. At the time of application the applicant was enrolled in two further Vocational Education and Training (VET) courses, an Advanced Diploma of Business course which was completed in September 2016, and a Diploma of Project Management course from 26 September 2016 to 31 July 2017. His enrolment the Diploma of Project Management course was subsequently cancelled. At the time of decision the applicant is enrolled in a higher education course, a Bachelor of Business at Holmes Institute Pty Ltd in Brisbane, with a course start date of 25 March 2019 and end date of 31 December 2021.

6. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that could be granted depended upon: the type of course in which the applicant was enrolled or had an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant was an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant had the support of the relevant Minister (Subclass 576); or whether the applicant had applied on the basis of being a Student Guardian (Subclass 580).

7. The Delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The Delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia. At the time of application the applicant was as noted enrolled in two VET courses. The Delegate noted in the decision record that the applicant had already obtained seven VET qualifications in the fields of business and hospitality. The Delegate found that the applicant had failed to establish a substantial benefit to his employment or business prospects in India through completing the additional courses. The Delegate noted that the applicant had lodged an application for a Temporary Working (Subclass 457) visa (withdrawn following an unsuccessful nomination), which suggested he was seeking to remain in Australia. The Delegate further noted that at the time of decision the applicant had been onshore for 2376 days and out of Australia for only 132 days; that he had spent a significant period of time in Australia on student visas; and that if he were to be granted the visa, he would further extend his stay as a temporary resident.

8. The Delegate concluded that the applicant was using the Student visa program to maintain residence in Australia.

9. The applicant applied for review of the Delegate’s decision, and it was affirmed by a differently constituted Tribunal on 13 July 2017. That Tribunal, in a written reduction of an oral decision, indicated that while the issue before the Delegate was whether the applicant met cl.572.223, the issue before that Tribunal at the time of that Tribunal’s decision was whether the applicant met the enrolment requirements for a Student visa. The Tribunal concluded, from documents tendered by the applicant considered during a telephone hearing on 13 July 2017 that the applicant was not enrolled in a relevant course of study and was not studying at the time of decision.

10. The applicant applied to the Federal Circuit Court of Australia (FCCA) for review of the former Tribunal’s decision. On 6 December 2017 Judge Jarrett of the FCCA remitted the decision for reconsideration, by consent, on the grounds that the decision was affected by jurisdictional error. Judge Jarrett considered that the Tribunal had failed to give clear particulars of the information that formed the basis of the Tribunal’s decision, to ensure as far as reasonably practicable that the applicant understood the relevance of the information, and to advise the applicant that he could seek additional time to comment on or respond to the information. Judge Jarrett concluded that the Tribunal had failed to provide the applicant with an opportunity to present his evidence and arguments in accordance with ss.359A or 359AA of the Act.

11. The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

12. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Having regard to the applicant’s proposed Bachelor Degree level course of study, the relevant subclass in this case is Subclass 573.

15. As the applicant has provided evidence of current enrolment, the issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223(1) and cl.573.223(1)(a). Clause 573.223(1) relevantly states:

    (1)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)     the Minister is satisfied that 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)     …

16. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction Number 53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors, including:

    ·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

    ·other relevant matters.

17. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

18. The applicant confirmed at the outset of the hearing that he understood the Delegate’s decision, and that he had provided a copy of the Delegate’s decision to the Tribunal. The Tribunal indicated to the applicant that further issues regarding his application for review had emerged since the Delegate’s decision. These included the amount of time he has been in Australia on Student and Bridging visas, nearly 10 years, which he proposed to extend to over 12 years. This in itself suggested to the Tribunal that he has been residing in Australia rather than staying temporarily for the purpose of study, and that he is not a genuine temporary entrant. The Tribunal further indicated that it had concerns about the applicant’s credibility arising from inconsistencies and seemingly untruthful claims in submissions he and his representatives had provided to the Delegate, the former Tribunal and this Tribunal.

19. The applicant confirmed that he has worked in Australia since his arrival. The Tribunal put to the applicant that his enrolment in a Diploma in Project Management course in 2016, which he had argued was the last essential qualification he needed to achieve his career goal of opening his own restaurant in India, was cancelled; that he had not completed this course during the 3 years following his visa refusal that he has remained in the country on bridging visas with study rights, but had rather enrolled, in 2019, in a Bachelor of Business course for which he had identified no need or intention to undertake at the time of application, but which would extend his stay in Australia to the end of 2021.

20. Following the procedures in s.359AA of the Act, the Tribunal advised the applicant that information in his PRISMS and international movement records, as well as his written statements of purpose and his agents’ written submissions, would be the reason or part of the reason for affirming the decision under review. The Tribunal advised the applicant that the information was relevant because it showed that he had enrolled in a large number of low-level courses with similar content for which he received a large number of credit transfers; that there have been significant gaps in his study periods; that a large number of his enrolments were cancelled; and that he has provided contradictory and seemingly untruthful information about his study and stay intentions. The Tribunal advised the applicant that the information also showed that he has left Australia only 3 times since arriving in August 2009: for 3 weeks in 2015; for 5 weeks in 2013; and for 10 weeks in 2012, when he married.

21. The Tribunal advised the applicant that the information was relevant because it indicated that he is not a genuine temporary entrant, and that he has used the student visa program to maintain residence and to work in Australia. The Tribunal advised the applicant that he could seek an adjournment and consult with his representative before responding to the information and the Tribunal’s stated concerns, and that he could seek an adjournment and consult with his representative before responding to any of the Tribunal’s questions.

22. The applicant sought and was granted one brief adjournment, following which he stated that he was advised by an education agent not to waste his money and time on the Diploma in Project Management because he could put unit credits towards a Business degree at Holmes Institute; that his course completion rate slowed down when he married in 2012 and when his daughter was born in 2016; and that after his father ‘expired’ in 2017 he was too distracted and confused by grief to be able concentrate on his studies. The applicant confirmed that he did not return to India following the death of his father. He stated that he didn’t have time before the funeral to organise flights, and in any event could not afford the return airfare. When the Tribunal asked the applicant why he did not go home to India at this time, as he was not studying, he stated that he ‘didn’t know what to do’.

23. The Tribunal accepts that the applicant was distracted and had competing priorities when he married, when his daughter was born and when his father died. The Tribunal acknowledges that overseas travel is expensive and difficult to organise at short notice. The Tribunal however finds that the applicant’s failure to return to India at the time of his father’s death and when he was not studying, and his claim that he ‘didn’t know what to do’ at this time, to indicate that he has used the student visa system to establish residence in Australia.

24. The Tribunal put to the applicant that he had described himself and was described in submissions from his agents, including the submission provided to the former Tribunal on 12 July 2017, as a diligent student passionately dedicated to obtaining qualifications necessary to start up his own restaurant and excited, along with his wife and other family members, about his imminent return to India. The Tribunal referred the applicant to his Statement of Purpose signed on 23 July 2016, where he declared, referring to his then enrolments in the Advanced Diploma of Business and Diploma of Project Management courses, that ‘this is the only qualifications which I need to achieve. Given that, my family has organized everything else for the business and I have a lot of support from other family members as well. We will definitely be able to establish the business in a sound manner’.

25. The Tribunal was not convinced by this claim. No business plan was provided by the applicant, despite its absence being noted by the Delegate. Further, no evidence was provided of the applicant’s claimed financial support from family members sufficient to start up a restaurant. The Tribunal is not convinced that such support exists.

26. The Tribunal referred the applicant to where it was stated in the submission provided to the former Tribunal on 12 July 2017:

    ‘In order to realise his career goal of opening his own business back home (the applicant) asserts that he will require the Diploma of Project Management and Advanced Diploma of Business in order to get the required expert knowledge to enable him to open and run a successful business in India’… ‘(The applicant) instructs that he only wishes to further remain in Australia for a short period, to finish his final two remaining qualifications. He instructs that upon completion, he will be returning to India to implement his career goals’.

    The Tribunal put to the applicant that there were inconsistencies in this document that rendered it incomprehensible. On the final page the sentence appears:

    ‘(The applicant) only needs to further remain in Australia for a short period to compete the last of his necessary studies, before returning to India to pursue his future career goals’.

    This is followed by the sentences:

    ‘(The applicant) instructs that he will finish his studies in one and a half months, as per the COE. He expresses that if he is successful in his outcome, he will study a Bachelor of Business at Holmes’.

27. When the Tribunal asked the applicant to explain why he did not complete the courses he was enrolled in at the time of application and return home to India, as this was his declared intention at the time of application, the applicant stated that he is learning new and interesting things in his Bachelor of Business course. When the Tribunal asked the applicant’s representative to explain the submission, he stated that a different agent from the same firm prepared it; that he was aware of its contradictory content; and that the contradictions were the result of an agent following their client’s instructions.

28. In the submission referred to above, the applicant claimed through his representative that he did not travel back to India regularly because as a diligent student he felt that this would slow the process of achieving his qualifications. The Tribunal referred the applicant to a Statement of Attainment from his course provider for his Advanced Diploma of Hospitality Management, conferred on 12 June 2019. This shows that of the 28 units of study in this course, the applicant was awarded 24 credit transfers, and that out of a total of 1435 course hours, he attended for at most only 230 hours. The Tribunal asked the applicant why, as a diligent student keen to complete his qualifications and return home, he spent so much time enrolled in courses for which there was little new content. The Tribunal also asked the applicant why he enrolled in Diploma of International Business and a Diploma in Project Management, which appeared to have little relevance to his plan to open a restaurant, and why he enrolled in so many inexpensive certificate and diploma level courses with similar content. The applicant acknowledged he has enrolled in a number of interrelated and similar courses and benefited from credit transfers in gaining his qualifications, but argued that he has acquired knowledge from all of his studies useful in a general sense to his future restaurant business, and that he is acquiring further knowledge through his Bachelor of Business course.

29. The Tribunal considers the applicant’s slow progress and enrolment in inexpensive courses covering similar subject matter, or subject matter irrelevant to his stated plan of opening a family-funded restaurant, to indicate that he has engaged in study for the purpose of prolonging his stay and working in Australia. The Tribunal considers that the applicant has enrolled in his Bachelor of Business course for the purpose of further prolonging his stay. The Tribunal notes that no mention was made by the applicant of any intention or requirement to undertake this course at the time the applicant applied for the visa.

30. The applicant advised that he has worked in Australia since 2009 for the same employer, a noodle restaurant chain, and that he worked during his periods of enrolment in courses for which he had to attend few classes because of credit transfers; during his period of inability to study through confusion and grief following his father’s death; and during his time on bridging visas appealing the decision to refuse his visa application. The applicant claimed that he has never worked more than the permissible 20 hours a week regardless of whether or not he has had classes to attend. When pressed on the gap in his enrolments after the visa refusal and on his reasons for not completing his Diploma of Project Management while on a bridging visa, the applicant through his representative explained that he has had work rights, and that it was not a requirement of his bridging visa to maintain enrolment in a course of study.

1. The Tribunal put to the applicant that he had more than enough qualifications to open a restaurant and did not require a further business qualification, let alone a Bachelor Degree, for this purpose. The applicant acknowledged that a Bachelor Degree from an Australian institution is not necessary to open a restaurant in India, but stated again that he is learning new and interesting things. He argued that Australian qualifications are highly regarded in India, including from institutions such as Holmes.

2. The Tribunal referred the applicant to the Delegate’s decision, where the Delegate was not satisfied with the applicant’s ‘generic claims in regards to reasons for choosing to study in Australia’. Besides noting that the applicant had not provided any detailed business plans, the Delegate noted that he had not provided any detailed and convincing demonstration of the necessity or value of his proposed further courses to his career and business intentions. The Tribunal asked the applicant why he had not provided such information and evidence to the Tribunal, as the lack of it was detrimental to his application, and this was clearly set out in the Delegate’s decision. The applicant responded that he has not as yet reached the concrete planning stage for his restaurant because he has not decided where it will be. He advised that he will provide Chinese as well as Australian and Indian food, drawing on his ten years of experience in noodle shops, and that this would give him an edge.

3. The applicant further advised that rent and labour costs are lower in India while meals sell for around the same as in Australia, and for this reason he is confident that his restaurant will be a financial success. The Tribunal accepts that a restaurant such as described by the applicant could be profitable, but, as noted, no evidence was provided that the applicant has access to the capital required to invest in such an enterprise. The Tribunal notes that the applicant can earn more as a cook in Australia that he could earn as a cook in India.

4. The Tribunal did not find the applicant a credible witness, for the reasons of his contradictory claims made in written submissions and the vague, general and unconvincing nature of his testimony at hearing. The applicant suggested, through his representative, that a no-further-stay condition be attached to his visa, and argued that this suggestion demonstrated his genuine study and temporary stay intentions. The Tribunal however is not satisfied on the evidence provided that the applicant’s enrolled course, a Bachelor of Business, is necessary or relevant to his claimed plan to open a restaurant in India.  Indeed, the Tribunal is not satisfied on the evidence provided that the applicant actually has such a plan.

5. The Tribunal finds that the applicant’s capacity to earn more in Australia than he could in India has been his incentive for enrolling in courses and maintaining residence in this country. The Tribunal notes that the applicant’s wife and daughter are here with him in Australia, and that he has lived here for nearly 10 years during which time he has returned to India for a total of only 18 weeks. The Tribunal does not find that the applicant has ties in India that would serve as a significant incentive for him to return.

6. The Tribunal notes that the applicant has not claimed to need or intend to compete for employment in India, but rather to open a restaurant, with family money. The Tribunal is not satisfied, on the evidence provided, that the applicant could not undertake in India any further study or training necessary to open a restaurant. The Tribunal notes that this study or training in India would be relevant to local conditions, and could assist the applicant to choose a location.

7. No claim was made or information before the Tribunal to indicate that the applicant has military service obligations or is reluctant to return home because of civil or political unrest in his country. There is no information before the Tribunal to indicate that the applicant has not complied with migration laws in Australia or any other country.

8. The Tribunal considers the applicant’s application for a 457 visa in 2013 to indicate his intention to remain in this country. The Tribunal does not accept his claim that he was seeking further, full-time work experience in the noodle shop solely for the purpose of adding value to his study and temporary stay objectives. The Tribunal considers that the applicant, having lived for nearly a decade in this country, has developed a good knowledge of living in Australia. The Tribunal considers that the applicant has demonstrated an acute knowledge of Australian courses of study, which he has utilised to prolong his stay in this country.  

9. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.573.223(1)(a).

10. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these visa subclasses.  In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

11. As the applicant is not a person who holds a student visa, the secondary applicant cannot meet cl.573.314.

    DECISION

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

13. Adrienne Millbank

    
    

    Member