Sandhu (Migration)

[2018] AATA 5517

Sandhu (Migration) [2018] AATA 5517 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh Sandhu

CASE NUMBER:  1717715

HOME AFFAIRS REFERENCE(S):           BCC2017/1956112

MEMBER:Mark Bishop

DATE:18 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2018 at 11:40am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion – ties with Australia present as a strong incentive to remain in Australia– maintain ongoing residence in Australia –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218, MD69, cls 9, 10, 11, 12, 13, 14, 15, 16

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 7 August 2017 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 9 June 2017. 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.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 17 December 2018 to give evidence and present arguments.

5. The applicant provided a copy of the decision record to the Tribunal. The decision record contained a history of the applicant’s immigration visa and study history in Australia. The delegate made a finding the applicant arrived in Australia in August 2009, has been the holder of three student dependant visas from time of arrival until December 2013, then applied for and was granted a TU-570 student visa on 10 December 2013 valid until 30 November 2014, then applied for and was granted a TU-572 visa valid until 14 June 2017. Thereafter until the present time the applicant has held a Bridging visa A and currently holds a Bridging visa B.

6. The applicant advised the Tribunal there were no errors or mistakes in the decision of the delegate. The applicant advised there was a reference to his age in the decision of the delegate. The Tribunal advised the applicant in response his age was not a consideration.

7. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

8. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

11. 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 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.

12. 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.

13. The delegate made a finding the applicant had been resident in Australia since August 2009 as the holder of successive student (dependent) visas followed by successive TU-570 and TU-572 student visas. The applicant now holds a Bridging visa, his application for a further TU-500 student visa having been rejected by the Department on 25 July 2017.

14. The applicant provided a written response to a Request for Student Visa Information under s.359(2) of the Migration Act 1958. It outlined the following:

    ·The applicant completed secondary school certificate in March 1995;

    ·The applicant declined to provide information about work experience before coming to Australia;

    ·The applicant had been the holder of various student visas from August 2009 until the present time. His last  application for a student visa was rejected in 2017;

    ·The applicant completed courses in English at Certificate III and IV level in February 2014 and January 2015 respectively;

    ·The applicant has completed VET Level courses at Certificate III and IV in Light Vehicle Mechanical Technology and Automotive Mechanical Diagnosis. The applicant has completed courses at Diploma level in Business and Automotive Management (scheduled to complete 14 January 2019). The applicant advised he had only one unit to complete and would finish that unit by 14 January 2019. The applicant advised he would return to India by mid-February. The applicant advised he was not enrolled in any further courses and had no plans to enrol in further courses of study;

    ·The applicant was employed as a casual worker at Price Plastic Pty Ltd from December 2009 until 2014 at a salary of $19,000;

    ·The applicant holds a passport from India, first arrived in Australia in August 2009 and departed Australia for brief periods on 4 occasions to see family, has not applied for a visa to any other country, and has not visited any other country for the last ten years;

    ·His annual living expenses in Australia are approximately $10,000 AUD;

    ·He last saw family in India in July 2017;

    ·His current enrolment in a Diploma of Automotive Management (scheduled to conclude 14 January 2019) will be his last course of enrolment and he will return to India to set up a practice in of his own mechanic shop;

    ·He advised he did not have any military service commitments in India and was not aware of any political or civil unrest in his home country.

15. The applicant provided copies of Graduation Certificates and course transcripts of units studied in all of the courses outlined in paragraph 13 above.

16. The applicant provided a copy of a Confirmation of Enrolment (COE) in a Diploma of Automotive Management that expired on 14 January 2019. The applicant advised he was not planning to engage in further study in Australia and would return to India by mid-February.

17. On 19 November 2018 the Tribunal wrote to the applicant and requested he provide the following information at least 7 days prior to the scheduled hearing date:

    ·A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.

    ·Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.

    ·We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.

    Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.

18. The applicant did not provide a GTE Statement to the Tribunal as requested. He provided copies of Graduation Certificates and a COE due to expire on 14 January 2019. See paragraph 14 and 16 above.

    Ministerial Direction Number 69

19. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

20. The Tribunal considers cl.9 and 10 of MD69 the applicant’s circumstances in his home country.

21. The applicant advised that shortly after the break-up of his marriage he had discussions with his family. He discussed returning home to India. He advised it was the view of his family he was better off gaining some technical qualifications from Australia. He advised he did not consider enrolling any institutions in India. He did not seek to enrol in any educational institutions in India. He advised he had little knowledge of the education system in his home country. He had not been exposed to the education system in Australia prior to enrolling in courses and starting to study. In essence he advised that after consultation with family it became his view it was better to gain technical qualifications from Australia.

22. The applicant did not lead any evidence that VET level qualifications from Australia have any particular utility in India. The applicant did not lead any evidence that employers in India hold VET level qualifications from India in any particular regard. The applicant did not lead any evidence that employers, employer groups, trade associations, producer groups or chambers of commerce in India attach any particular significance to VET qualifications from Australia.

23. The Tribunal is of the view the applicant has not advanced sound reasons for not undertaking the study in his home country.

24. The applicant advised both of his parents were alive and he did not have any siblings in India. He does not have any assets in his name. He did not advise of any contact with community groups or friends from former periods of residence in his home country. His parents are wealthy and provide financial support.

25. The Tribunal is of the view the extent of the applicant’s ties to his home country do not serve as a significant incentive to return to his home country.

26. The applicant currently works as a taxi driver in Melbourne. He earns approximately $300 per week. He receives remittances from home to cove tuition costs. He has been continuously employed in Australia since coming to this country.

27. The Tribunal is of the view the economic circumstances of the applicant present as a significant incentive for the applicant not to return to his home country.

28. The applicant advised he did not have any military service commitments in India and was not aware of any political or civil disturbances in his home country.

29. The applicant described his family as having a secure income, having a good standard of living and comfortably off compared to a lot of people in India.

30. The Tribunal is of the view the applicant’s circumstances in his home country are better off than most in his home country.

31. The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.

32. The applicant advised he was divorced from his wife. He advised he attends temple for festival, social and cultural events. He attends temple to meet with friends and participates as a guest with friends in events such as marriage, engagements and birthdays. He advised he has a network of friends that derives from work and study. He advised he has a mixture of Indian and Australian friends in his network. He advised he plays sport.

33. The Tribunal is inclined to the view the applicant has a well-ordered and well-structured life in Australia. He has been resident in Australia since 2009. Firstly married and in more recent years as a single man. Quite naturally he has developed social networks through study and work. Those networks appear to be quite extensive. In addition he has maintained contact with his community through attendance and participation in social and community events and celebrations.

34. The Tribunal is of the view the applicant’s ties with Australia present as a strong incentive to remain in Australia.

35. The Tribunal is inclined to the view the applicant is using the Student visa program to circumvent the intentions of the migration program and maintain ongoing residence.

36. There is no evidence before the Tribunal that the applicant has contrived a relationship for Student visa purposes. There is no evidence of any relationship. The applicant is a divorced person. The Tribunal has similarly considered cl.11(e) of MD69. Having lived and studied in Australia for nine years the applicant clearly has knowledge of study related matters and associated education providers. He has pursued his career in the plastics industry and gained qualifications in light vehicle and automotive. He has gained formal qualifications. He seeks opportunity in those fields I his home country.

37. The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.

38. The applicant has completed VET Level courses at Certificate III and IV in Light Vehicle Mechanical Technology and Automotive Mechanical Diagnosis. The applicant has completed courses at Diploma level in Business and Automotive Management (scheduled to complete 14 January 2019). The applicant advised he had only one unit to complete and would finish that unit by 14 January 2019. The applicant advised he would return to India by mid-February. The applicant advised he was not enrolled in any further courses and had no plans to enrol in further courses of study.

39. The applicant advised he wished to return to his home country in the immediate future and pursue challenges in opening and developing his own auto workshop. He agreed the success of that enterprise would depend upon the service he provided and the ability to retain a clientele. He advised his father would assist in the provision of finance for that enterprise. The applicant is a mature man, has industry and trade relevant credentials, is skilled in industry work in Melbourne, has been exposes to the theoretical concepts inherent in Business and Management through the education system in Australia and has a plan to use that set of skills to advance his future.

40. The Tribunal is of the view the applicant has a useful set of qualifications and skills that will enable him to be successful in his home country. The courses the applicant has now completed will assist him to obtain employment and improve his employment prospects in his home country.  

41. The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.

42. The Tribunal notes that cl.13 of MD69 makes it clear an applicant’s immigration history refers both to their visa and travel history.

43. As outlined in paragraphs 5 and 13 above the applicant has been continuously resident in Australia since 2009 as the holder of a range of visas. Whilst that may be unusual it is also lawful. There is no evidence before the Tribunal that suggests the applicant has been in breach of conditions attached to his various visas. His current visa is a Bridging visa that permits study. He has studied a series of courses at the vocational and management level and completed those courses.

44. The applicant has been onshore for a long time. The applicant did not provide a GTE statement to the Tribunal. The Tribunal is troubled by the lengthy period of residency in Australia and the general lack of interest on the part of the applicant in completing study when that was not the actual purpose of a specific visa. The Tribunal acknowledges the applicant since 2015 has been more diligent in his attention to gaining formal qualifications he regards as being critical to his future.

45. Having regard to the above the Tribunal is satisfied the applicant has been using the Student visa program primarily for maintaining ongoing residence and has taken a series of short, inexpensive courses to give effect to that purpose.

46. The Tribunal considers cl 15 and 16 of MD69 if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant and any other relevant matters.

47. As the applicant is over 18 years of age, the intention of their parent, legal guardian or spouse was not relevant to the Tribunal’s assessment.

48. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia and find that there are no other relevant matters for consideration.

49. The Tribunal has considered all of the information provided by the applicant in support of their application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding their circumstances in their home country, potential circumstances in Australia, immigration history and the value of their proposed course to their future are sufficient to demonstrate that they are a genuine temporary entrant.

50. 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).

    Conclusion on cl.500.212

51. 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.

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

    Mark Bishop
    Member