SATBIR KAUR (Migration)

[2018] AATA 5941

SATBIR KAUR (Migration) [2018] AATA 5941 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SATBIR KAUR
Mr AMRITPAL SINGH
Master JASKARAN SINGH
Miss GURLEEN KAUR

CASE NUMBER:  1618509

HOME AFFAIRS REFERENCE(S):           BCC2016/2592312

MEMBER:Wendy Banfield

DATE:25 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2018 at 4:43pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – multiple courses in different subjects – applicant’s circumstances in home country and Australia – employment history and objectives – value of proposed study to employment – continuing study to maintain residency – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

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 31 October 2016 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 5 August 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 visas 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 criteria of genuine temporary entrant for study was not met.

   Background

4. The primary applicant is a citizen of India and is currently 38 years old. The secondary applicants are the husband and children of the primary applicant. The children are aged 13 and 11. The applicant and her husband came to Australia on 20 March 2009 while the children arrived in 2015. The applicant has a brother in Australia and extended family members in India.

5. Since arriving in Australia the primary applicant has completed Accounting qualifications and also held a Subclass 485 visa. The applicant applied for the visa which is the subject of this review so that she could continue studying at Diploma level. In India the applicant obtained a Bachelor of Arts and Master of Political Science. In Australia she completed a Bachelor of Accounting, Graduate Diploma in Business and Diploma of Human Resource Management. She is currently undertaking an Advanced Diploma of Management (Human Resources).

6. The primary applicant appeared before the Tribunal on 9 January 2018 to give evidence and present arguments.

7. The applicants were assisted in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the decision 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. The issue in the present case is whether the applicant meets the criteria.

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 Tribunal has considered the applicant’s circumstances in her own country. She has extended family members in India and she declared she has property and assets, however; her husband and children reside in Australia, as does one sibling. The applicant denied she had withheld information from the Department about a brother residing in Australia and provided a copy of her application form that contains the correct information. The Tribunal accepts the applicant did disclose the presence of a brother residing in Australia as she claimed and that this finding by the Department was not correct.

14. Regarding the applicant’s potential circumstances in Australia, she has an extensive work and study history since arriving in 2009 to undertake higher education. The applicant has qualifications in Accounting including a Graduate Diploma and has undertaken work experience in the field. At the time of application the applicant intended to study a Diploma of Marketing but this had been changed to Human Resources. The applicant declared at the Tribunal hearing that she would return to India after completing an Advanced Diploma but the Tribunal is not satisfied this is the applicant’s honest intention.

15. As stated by the delegate in the decision record dated 31 October 2016, the applicant withheld information about her employment history since leaving school, college or university. She did not provide any answer to the relevant question contained in the application form and instead gave her employment status as ‘student’. According to the evidence since provided, the applicant was employed from 2012 to 2016 as a Supervisor for a company called Ensign Spotless. The Tribunal is concerned the applicant did not provide information about her work history at the time of application when she had actually been employed as a Supervisor for approximately four years.

16. At the time of the Tribunal hearing, the applicant was employed as a Retail Manager by a Tobacconist and Gift Store beginning in August 2016. The applicant provided a Work Experience History in which she stated her career objective is to “obtain a full-time position with a company…” This is in contrast to the applicant’s claim that she plans to establish an Accountancy firm on her return to India. Also included in the work history is a description of the applicant’s current job as follows:

    Responsible for every aspect of the day-to-day supervision of the retail outlet of the business including sales, staff, stock and resources management and to run store successfully. Working on the shop floor in constant contact with customers and staff, ensuring staff give great customer service as well as dealing with the financial side of the store and people management.

17. In addition, the applicant provided a breakdown of her significant job responsibilities. These include purchasing, sales, cash management, pricing, stock control, contracting, security, recruitment and training.

18. The Tribunal finds the applicant’s main focus in Australia is her ongoing employment rather than education and that she is seeking to continue studying at a vocational level in order to maintain residency. This conclusion is supported by the fact the applicant has also applied for a Subclass 187 Regional Sponsored Migration Scheme visa.

19. The Tribunal is not satisfied the course the applicant is currently studying will add value to her future over and above the qualifications and work experience she already has. After obtaining tertiary qualifications the applicant has regressed to vocational courses which it was claimed, are necessary to run a business. The Tribunal does not accept the applicant requires qualifications in various aspects of business management such as Marketing and Human Resources in order to work as an Accountant, either as an employee or a sole practitioner.

20. The Tribunal has considered the immigration history of the applicants. The primary applicant and her husband came to Australia on 20 March 2009 and have been residing in Australia for 9 years and 3 months at the time of decision in this case. The primary applicant has visited her home country periodically but at the time of application, the secondary applicant had not returned to India since his arrival in Australia. It was claimed the secondary applicant is not on good terms with his family which is why he has not visited. This is indicative of a lack of ongoing ties to his country of origin by the secondary applicant. Although the primary applicant has returned to India since her arrival, the length of time since she left and the presence of her immediate family in Australia suggest her ongoing ties have diminished.

21. Prior to coming to Australia the primary applicant had already obtained tertiary qualifications having gained a Bachelor and Master degree in India. Since her arrival she has completed a further Bachelor degree and a Graduate Diploma as well as undertaking a period of graduate work experience as the holder of a Subclass 485 visa. Since applying for a further student visa on 5 August 2016 the applicant has also completed a Diploma of Human Resources.

22. The Tribunal considers the applicant is continuing to study in order to maintain residency in Australia, rather than for a genuine purpose. As stated, the Tribunal does not consider further studies in Australia will assist the applicant in her own country over and above the qualifications she already holds. It also appears the applicant is seeking to continue studying in the event she is not successful in obtaining work sponsorship. This is not the purpose of the student visa program and the Tribunal is not satisfied the applicant is a genuine student.

23. 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).

24. 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.

25. 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

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

    Wendy Banfield
    Member