Sharma (Migration)

[2019] AATA 1321

Sharma (Migration) [2019] AATA 1321 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhishek Sharma

CASE NUMBER:  1718486

HOME AFFAIRS REFERENCE(S):           BCC2017/1790359

MEMBER:Peter Booth

DATE:15 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 15 April 2019 at 3:33pm

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 31 July 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 19 May 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).

4. The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments.

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 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 gave evidence to the Tribunal as follows.

11. The applicant was granted a Temporary Student visa (subclass 500).  The applicant arrived in Australia on 20 March 2015.  The visa was valid until May 2017.  Since arriving in Australia the applicant has returned to India on two occasions.  First in June 2018 for 35 days and again in January 2019 for 35 days.

12. The applicant enrolled in a Master of Technology (Enterprise Systems) in March 2015.  He did not complete the course because he found it to be too difficult.  He said that he had completed a Bachelor of Technology in India but found the course standards in Australia to be too hard.  The applicant was excluded from the course on 23 January 2017.

13. The applicant then enrolled in a Bachelor of Business (Information Systems) course in March 2017.  He did not complete the course but said that he persisted in studies for about one and a half years.  He said that the completion of his studies in Australia was a ‘big pride issue’ in India.

14. The applicant said that he returned to India in 2018 and again in 2019.  His relationship with his father is strained due to the applicant’s failure to complete his study in Australia.  He has promised his father that he will pass this course.

15. After completion of his study in India, he worked for three months in Indian as a trainee systems analyst.  He was about earning approximately $2,000AUD per annum as a trainee or ‘intern’.

16. The applicant is currently enrolled in a Bachelor of Business at Stott College and produced a Certificate of Enrolment at the hearing.

17. The applicant agreed with the Tribunal that this course was at the same level as the course which he had already completed in India.  The applicant said that he wished to undertake the course so that he could work as a financial analyst or accountant.  When asked by the Tribunal whether he could undertake such a degree in India he said that he doubted he could gain entry to any college in India.  He did not elaborate upon the reasons. 

18. The applicant has a mother, father and younger sister in India.

19. The applicant gave evidence that his father’s house was worth about $100,000 AUD.  He considers this to be an asset because he expects to inherit it as the only son.  He said that there was another house, the ownership of which is in dispute, the value of which would be about $100,000 AUD.  Apparently the house is part of his grandfather’s estate.  If the dispute is resolved against his family’s interests he said that they would nonetheless receive about one-third of its value.

20. The applicant is currently employed in a part-time capacity in Australia earning about $1,800 AUD per month.

21. The applicant produced a variety of documents at the hearing most of which were either illegible or not in English.  Save for the Certificate of Enrolment and the academic results of the Master of Technology course at Federation University and Kent Institute they were not referred to by the applicant.  The academic results (dated 25 January 2017) from Federation University show that he passed four units (obtaining a credit on one of those) and failed or did not sit the remaining ten units.  It appears that he undertook four of those subjects and failed them.  He said that the university considered his progress to be unsatisfactory and excluded him from the course.  The applicant did not otherwise refer to or rely on the documents.

22. The academic results from Kent Institute show that in respect of the Bachelor of Business (Information Systems) that he has a pass in each of four subjects and credit results in two subjects.  The remaining subjects were failed.  He said that he was excluded from the course after about 18 months due to unsatisfactory performance.

23. One of the documents filed at the hearing was an undated letter from the applicant in support this appeal.  It was consistent with his evidence although in it he did state that he had made several attempts to enrol elsewhere after his exclusion from the Masters in Technology, but was not accepted due to poor performance in the previous course.  The letter stated that it was his hope to work for ‘big companies in a higher position’.

24. He gave evidence that if he returned to India with his existing Indian degree he would find it hard to get a job.  His evidence was that his family would pay for his course, an amount of $35,275AUD.  The applicant gave no evidence as to whether he would he undertake such a degree in India or whether there were restrictions on his ability to return to India.

25. The applicant has been in Australia for four years without completing a course of study.  The Tribunal accepts that the applicant has commenced two degree courses and studied for a period of time in each.  The applicant has passed or achieved a credit result in several of the units in each of the courses.  However, his progress has been unsatisfactory in each such that he was excluded.  The applicant conceded that he found the courses too difficult despite having completed a Bachelor degree in India.

26. In the Tribunal’s view, it is incumbent on a student intending to study in another country to satisfy himself or herself that they have the necessary language and other skills required to be able to reasonably complete the course of study.  The applicant gave no evidence of such inquiries such that he could have reasonably expected to undertake a degree course in Australia.

27. The Tribunal notes that whilst the applicant has family ties in India that he has only visited his home twice for 70 days during the four years that he has been in Australia.  Further, despite his evidence of trying to complete two courses he has not completed any course of study during the four years that he has been in Australia.

28. The Tribunal notes that the proposed course of study is a Bachelor degree in Business.  The applicant gave no evidence of having made any inquiries as to his ability to successfully undertake the course or whether he expects to do so.  The Tribunal has serious concerns as to whether, for a third time, the applicant will be able to complete such a degree level course.  It is also significant that the applicant has part-time employment earning about $1,800AUD per month.  Access to regular, presumably, well rewarded work compared to his earning capacity in India provides a powerful incentive to remain in Australia.

29. 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.

30. 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.

31. The Tribunal gives weight to the evidence that since the applicant’s arrival in Australia the applicant has spent approximately four years in Australia and 70 days outside of Australia 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.

32. 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 that goal. 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.

33. 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.

34. On balance, and after considering all the evidence, the Tribunal is not satisfied that the applicant is a genuine temporary entrant.  Rather, the Tribunal considers that the applicant is using the student visa program to circumvent the migration program and using the student visa system to maintain ongoing residence in Australia.

35. 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).

    DECISION

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

    Peter Booth
    Member