Satvir Singh (Migration)

[2019] AATA 1325

Satvir Singh (Migration) [2019] AATA 1325 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Satvir Singh

CASE NUMBER:  1726658

HOME AFFAIRS REFERENCE(S):           BCC2017/3102249

MEMBER:Peter Booth

DATE:16 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2019 at 9:26am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – value of course to applicant’s future – disparity in earning capacity – personal ties to home country – time already spent in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 23 October 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 28 August 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 applicant was not a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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?

8. 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, which is attached to this decision, 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.

9. 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.

10. The applicant arrived in Australia on 25 October 2014 as the holder of a student visa (subclass 573).  That was visa was valid from 21 October 2014 to 30 August 2017.  Mr Singh gave evidence that he had not completed any tertiary education in India.  He said that he was enrolled to undertake a Diploma of Business and a Bachelor of Commerce once he arrived in Australia.

11. The applicant said that during the period he has been in Australia he has left on two occasions.  In January 2017 for 33 days and July 2018 for 18 days.

12. The applicant said that he did not conclude the Bachelor of Business although he went to lectures for about six months.  He did not sit any exams and said that he was not excluded by the education provider.  He said that when he started and went to the classes he did not complete them and “they wanted me to start again”.  He said he abandoned the course because he could not understand some of the units.  He said the problem was with the content of the course.  When asked what enquiries he had made of the course before he came to Australia he said that he had “asked relatives and the agent”.  The applicant said that he did not start the Bachelor of Commerce because he had not completed the Diploma of Commerce.

13. The applicant enrolled in a Diploma of Building and Construction in August 2016 but did not complete it.  He said that he “went to school” for 8 months and passed about half of the subjects.  He did not complete the course because he said that it was building and construction management and he really wanted to do a course about building and construction.  He was asked why it took him 8 months to decide that it was the wrong course.  He did not provide any meaningful response.  He then enrolled in a Certificate IV Building and Construction course in July 2018 which was to be completed in July 2019.  He said that he went to the classes and he had completed three of the units.

14. The Tribunal asked the applicant to explain the change in direction of his study from a Bachelor of Commerce to building studies.  He said that the “agent told me it was a good course” and that he had decided that there was a better career in building.  The Tribunal does not consider that the applicant has demonstrated any value of the course to his future other than a thin assertion.  The Tribunal asked whether he was aware that it a condition of the 573 visa that he undertake higher education studies, to which he answered positively.

15. The applicant said that he was now working as a carpenter and got paid about $21AUD per hour.  He estimated that his income as carpenter in India would be about $1,000AUD per month if he was running his own business.  The Tribunal considers that the disparity of incomes provide a strong incentive to stay in Australia.

16. The applicant’s immediate family in India comprises his mother, father and brother.  He said that his family owned agricultural land in India which he estimated to be worth about $300,000AUD. The Tribunal does not consider that this provides a significant incentive to return to India.

17. The Tribunal informed the applicant that his statutory declaration, in support of his application (dated 2 April 2019) had been read and asked whether he wanted to add anything to it.  In response he said that he wanted to complete his course.

18. The Tribunal does not consider the applicant to be a genuine temporary entrant for several reasons.

19. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to India.  The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

20. The Tribunal has considered the applicant’s personal ties to India.  While the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

21. The Tribunal gives weight to the evidence that since the applicant’s arrival in Australia on 25 October 2014 the applicant has spent about four and a half years in Australia and travelled outside of Australia on two occasions for a total period of 51 days which indicates that the applicant does not appear to have strong personal ties to India.  Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be minimal.

22. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve higher education studies.  The applicant was granted a 473 visa which would have facilitated the applicant’s study in the applicant’s desired field.  The applicant lodged the next visa (subclass 500) application two days prior to expiry of the 473 visa.  It therefore appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

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. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

25. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69: economic circumstances of the applicant, any potential military service in India, political or civil unrest circumstances in India, remuneration the applicant could expect to receive in India or a third country compared with Australia, circumstances in India relative to Australia or any other country and the applicant’s circumstances in India relative to others in that country.

26. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

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

28. 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

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

    Peter Booth
    Member