Sidhu (Migration)

[2018] AATA 3116

Sidhu (Migration) [2018] AATA 3116 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harinder Singh Sidhu
Mrs Ramandeep Kaur
Master Aviraaj Singh Sidhu

CASE NUMBER:  1708935

HOME AFFAIRS REFERENCE(S):           BCC2016/2991312

MEMBER:Mark Bishop

DATE:24 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 24 July 2018 at 12:01pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine non-temporary entrant criteria – Vague career plans – Granted numerous student and bridging visas – Use of student visa program to maintain residency status – Secondary applicants – Members of the same family unit  – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.212, 500.311

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 April 2017 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 8 September 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 delegate was of the view the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal. The decision record contained an extensive discussion of the applicant’s study history derived from PRISMS.

5. On 7 April 2017 the delegate refused the application for a student visa. On 24 April 2017 the applicant lodged an application for review. On 20 June 2018 the Tribunal wrote to the applicant advising of a hearing scheduled for 24 July 2018.  At approximately 4pm on 23 July 2018 the applicant requested an adjournment until after 22 August 2018 on the grounds he was in New Zealand and not returning to Australia until after 22 August 2018. Departmental records showed the applicant accompanied by his family departed Australia on 24 November 2017. The applicant did not offer any reason as to why he could not attend the hearing or why he sought an adjournment ((of course noting the applicant was in New Zealand).The Tribunal considered the request carefully. The Tribunal decided not to postpone the hearing. The Tribunal advised the applicant in writing it would allow the applicant to appear via telephone. On 24 July 2018 the Tribunal attempted to contact the applicant by phone on three occasions. The applicant did not respond to these attempts to contact him.

6. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)

9. 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?

10. 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.

11. 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.

12. The applicant was granted a student visa on 2 April 2009 and has been granted numerous student and bridging visas since. The applicant has been continuously resident in Australia since arrival in Australia in March 2009.

13. Since being in Australia the applicant has completed numerous VET courses including ESL, a Certificate 111 in Automotive Mechanical Technology, a Diploma  of Management, a Diploma of Automotive Management, a Certificate IV in Frontline Management, an Advanced Diploma of Management, a Diploma in Marketing and a Certificate IV in Automotive Mechanical Diagnosis.

14. The applicant provided a course completion level for a Certificate IV in Automotive Mechanical Diagnosis dated 20 June 2016.

15. The applicant has qualifications that would enable him to gain employment as a mechanic. The applicant has both sector specific automotive management qualifications and more general industry wide management qualifications at a relatively senior level.

16. On 20 June 2018 the Tribunal wrote to the applicant requesting he provide the following information (1) A copy of a current Certificate of Enrolment (COE) (2) Documents that showed the applicant was currently enrolled in a course (3) Documents that show past studies in Australia, attendance certificates, academic transcripts and certificates of completion and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

17. The applicant did not respond to this request for information.  The applicant did not provide a statement to the Tribunal.

18. There is no information before the Tribunal the applicant has been enrolled in an approved course since 20 June 2016. There is no information before the Tribunal the applicant is currently enrolled in an approved course.

19. The Tribunal finds the applicant does not hold a current COE and is not enrolled in an approved course. 

20. The applicant provided two statements dated 8 September 2016 and 3 March 2017 to the Department that outlined the following:

    ·On 11 May 2009 the applicant arrived in Australia to study, and completed a Certificate III in Automotive Mechanical Technology, Certificate IV in Automotive, Diploma of Automotive Management and Diploma of Marketing;

    ·The applicant intends to study Diploma of Leadership Management and Advance Diploma of Leadership Management at Angad Institute from 12 September 2016 to 16 October 2018 to develop marketing objectives and strategies, manage finances and business planning to successfully achieve dream of owning a work shop business. The applicant does not want to work for someone else and no future study plans once courses are completed;

    ·The applicant researched Angad Institute through friends and toured the college. It has modern learning facilities, interactive classes and manageable study timetables;

    ·India has a flourishing economy and international companies looking for competent people;

    ·He did not study in India as Australian universities are well known for their education system, billions of invested dollars to offer world-class facilities and educators;

    ·He intends to return home to his mother, father and an elder brother. His parents support him financially. Currently living with friends in shared 2 bedroom house in Clayton South;

    ·He intends to open his own business in India and this requires a serious time investment. He has been waiting patiently for 9 years to start his business in India;

    ·He has completed previous Diploma of Marketing at South Pacific Institute and Advanced Diploma of Management from Brighton Institute courses to separate him from competitors in India;

    ·His online course research suggests proposed courses are different from previous courses. They have different business concepts in leadership and management. The applicant wants to develop new management and leadership skills;

    ·His father has retired and currently on a pension, mother slowly saving for him to open his own small business in rural area of Punjab, India. His parents’ old age is a strong incentive to return home. 

21. The Tribunal has considered all the above information and has regard to Ministerial Direction number 69

22. The primary objective of a Student visa holder in Australia is to study a registered course and progress academically. The applicant has not completed any courses above the Vocational Education and Training sector level and maintained enrolment in a series of short, low value, inexpensive courses at this level since August 2009 until 20 June 2016. To date, the applicant has applied for, or undertaken courses in several different fields of study including Automotive Mechanical Diagnosis and Management courses. There is no evidence before the Tribunal the applicant has been enrolled in any approved course since 20 June 2016.The Tribunal finds the applicant’s enrolment history indicates he has sought further enrolment not for the purpose of academic development leading to professional opportunities in his home country, but rather to retain residence in Australia for an extended period for the purposes of employment and examining other migration pathways.

23. The Tribunal is not satisfied the applicant has provided strong justification for pursuing further study particularly given that the current package of enrolments is in a very similar field of study to those previously undertaken onshore. The Tribunal notes in this context the applicant has not provided any information concerning progress, if any, in these courses since 2016. The Tribunal has considered the applicant’s comments regarding his desire to expand skills and broaden his understanding in the field of Management so he can open a workshop in his home country.  However given the low level of the proposed courses when combined with qualifications already obtained it seems implausible to the Tribunal the applicant will achieve this by undertaking this new course. The Tribunal is not satisfied that the proposed study is of greater benefit to the applicant than the qualifications already held. Consequently the Tribunal tends to the view this course of study is unlikely to significantly increase the applicant’s career prospects or remuneration upon return to his home country to justify the expense incurred.

24. The applicant’s statement does not demonstrate any strong reasons why he is now enrolled in these courses. The statement provided is very general in nature and when considered against previous study history the Tribunal is not satisfied the applicant is genuinely seeking to undertake the proposed courses for the reasons declared and he is more likely seeking to maintain residency in Australia.

25. The Tribunal also notes that the applicant applied for his Student visa on 8 September 2016 and received enrolment approval in the course on the same day. It therefore appears that the applicant has recommenced studying for the purposes of the visa application only in order to secure a student visa rather than due to a genuine interest in further study in this area and overall academic progress.

26. The applicant is requesting a stay period until at least December 2018. This will bring the total time in Australia on temporary visas to more than nine years. The Tribunal finds it difficult to reconcile the extensive proposed stay onshore with the applicant’s claim he is

27. a genuine temporary resident. Rather, the significant period of time he has spent in Australia since initial arrival and the lack of value of their proposed courses suggests potential circumstances in Australia outweigh any incentive he may have to depart.

28. The applicant was requested to provide evidence of ties to his home country that show a significant incentive to return home at the end of the stay in Australia. While the Tribunal acknowledges that the applicant’s elderly parents reside in India and the applicant has provided a statement that he has to look after them in their old age, when weighed against the length of time he has resided in Australia and the fact the application includes his dependent spouse the Tribunal is not satisfied that this alone would outweigh the incentive to remain in Australia.

29. 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

30. 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.

    Secondary applicants Mrs Ramandeep KAUR and Master Aviraaj Singh SIDHU

31. The above named applicants are members of the family unit of the primary applicant Mr Harinder Singh SIDHU. As the primary applicant was found not to meet Cl.500.212 the secondary applicants do not meet Cl.500.311.

32. As the secondary applicants do not meet Cl.500.311 the secondary applicants do not meet the criteria for the grant of a student visa.

33. 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

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

    Mark Bishop
    Member