Simranjit Singh (Migration)

[2019] AATA 2253

Simranjit Singh (Migration) [2019] AATA 2253 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simranjit Singh Simranjit Singh

CASE NUMBER:  1718100

DIBP REFERENCE(S):  BCC2017/2175101

MEMBER:Roger Maguire

DATE AND TIME OF

ORAL DECISION AND REASONS:          12 April 2019 at 11:27 am (QLD time)

DATE OF WRITTEN RECORD:                8 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 08 May 2019 at 9:18am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met–  no current confirmation of enrolment– poor record of completion – lack of academic progress–maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 28 July 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 20 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994. The applicant provided the Tribunal with a copy of the delegate’s decision record dated 28 July 2017. The Tribunal is not bound by the delegate’s decision record but may have regard to it.

5. The Tribunal also had access to the relevant file of the Department of Immigration and Border Protection.  The applicant appeared before the Tribunal on 12 April 2019 to give evidence and present arguments.  For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

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 clause 500.211 to clause 500.218 must be satisfied by the applicant. 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 to 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 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 conditions 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.

8. In considering whether the applicant satisfies clause 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 section 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 applications for an Australian visa or for a visa 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 Tribunal had before it the decision record referred to above.  Salient points arising from that record include:

    a.After originally entering Australia on a Tourist visa Subclass FA 600, which was valid until 26 July 2017, six days prior to the expiration of the applicant’s tourist visa, the applicant made a significant change of plans and applied for a Student visa Subclass TU on 20 June 2017, and enrolled to study courses comprising of general English, a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management, which subject to the grant of the visa would extend the applicant’s stay in Australia until 2 April 2020;

    b.The applicant provided a GTE Statement, which expressed ambitions of being qualified to be a chef and kitchen manager and acquiring the managerial and operational skills to manage his own restaurant in India and make his parents feel proud of him;

    c.Information available to the Department showed that the applicant had originally been granted his tourist visa to visit his brother who is an Australian citizen;

    d.The applicant arrived in Australia with his spouse who departed Australia on 6 January 2017;

    e.The applicant informed the Department that he was employed with Capital Local Area Bank Ltd and the Department was able to verify that he had been employed as a senior executive of marketing;

    f.The delegate considered that the applicant had enrolled in courses inconsistent with his previous employment as a senior executive of marketing at Capital Local Area Bank Ltd and had provided no substantial reasons for his course selection.  Whilst the applicant had stated he wanted to run his own restaurants there was no financial or business plan and the applicant had failed to satisfy the delegate that his proposed study would improve his employment prospects.

11. On 25 February 2019 the applicant was sent a written invitation to provide information about his entry and stay in Australia as a student.  The applicant requested and was granted extra time to reply.  In his response to a request for student visa information hereinafter referred to as the response delivered on 25 March 2019, which the applicant declared to be complete and correct, the applicant left many sections blank but disclosed among other things:

    a.He had no current confirmation of enrolment.

    b.He completed the equivalent of year 10 in March 2002 and year 12 according to the Punjab School Education Board in March 2004. 

    c.He completed a Bachelor of Arts at Guru Nanak Dev University in March 2008. 

    d.He completed a post-graduate Diploma in Commerce in April 2009 at the same university. 

    e.The applicant disclosed no work experience prior to coming to Australia.

    f.The applicant returned to India for two months and 21 days in early 2017 to visit his family and for 13 days for his sister’s wedding in November 2017 and for 20 days to visit his family in early 2019. 

    g.The applicant also visited Fiji for two days in October 2016.  The applicant disclosed that he had previously held a visitor visa and was currently on a bridging visa B but had no pending visa applications or history of visas being cancelled or considered for cancellation.

    h.In response to a request to list details of all study courses he had enrolled in since coming to Australia the applicant listed only one study course, an English course, which he commenced in June 2017 and completed in November 2017. 

    i.The applicant disclosed no work or income in Australia but annual living expenses of AU$6,700.

    j.The applicant listed his parents, spouse and sister as living in India and said he last saw them in January 2017 and is on the phone regularly to them. 

    k.The applicant said he was a member of a blood donation community in his home country. 

    l.The applicant gave no details of any ties to Australia and disclosed no assets anywhere. 

    m.The applicant said he would inform the Tribunal of his future plans at the hearing and said he would not earn any income from his proposed qualifications in his home country or a third country. 

    n.The applicant said he had no concerns about military service or political or civil unrest in his home country.

12. At the hearing the applicant was asked if he was enrolled in a current course of study and the applicant produced a confirmation of enrolment issued on 8 April 2019 for a Certificate IV in Commercial Cookery to commence on 8 April 2019 and conclude on 1 June 2020 and a Diploma of Hospitality Management to commence 6 July 2020 and conclude 1 March 2021.

    Applicant’s circumstances in his home country 

13. The applicant was asked what personal ties he has to India and said his father is a horticulture officer; his mother is a housewife;, his wife is also a housewife; and his sister is married.  The applicant was asked about his personal, economic and community ties and circumstances in India and said his father owns three houses worth about AU$1 million in the city and is retired, but currently doing private business as a real estate agent.

14. The Tribunal asked the applicant what work he had done in India prior to coming to Australia and how much he had earned.  The applicant said he was working in a private bank as a senior executive manager and held that position for three or four years.  He was earning the equivalent of about AU$5,000 annually. 

15. The Tribunal asked the applicant how much he anticipated earning after his proposed studies.  The applicant said as an employee he could earn one lakh per month or about AU$2,000 in a big city and about AU$22,000 per year if he owned his own restaurant.  Working as an employee in his home town he would earn about AU$800 per month.

16. The applicant was asked why it was necessary for him to do his current course in Australia when similar courses were bound to be available in India and were obviously acceptable to the local job market.  The applicant said that employers prefer overseas qualifications and place a higher value on these.  The applicant said he could not see any future in terms of studying in India as there are many people with local qualifications but people with local qualifications cannot run a good business and there are less people with overseas qualifications.

17. The applicant confirmed to the Tribunal that he does not have any issues concerning military service, political or civil unrest in India and India is a peaceful place. 

18. The applicant said he does not maintain any community ties in India other than a blood donation group. 

19. There is no evidence regarding the applicant’s circumstances in his home country relevant to others in that country and the Tribunal makes no finding in that respect.

20. The Tribunal makes no finding adverse to the applicant in respect of this criterion.

    Applicant’s circumstances in Australia 

21. The Tribunal asked the applicant what family, community or other ties he has which would be a strong incentive to remain in Australia.  The applicant said his brother and brother’s wife live in Brisbane and he has been living with them since July 2016.  He is living rent-free but contributes AU$100 to AU$150 per week for groceries.  His father provides money to the brother’s relatives in India and his brother gives him AU$1,200 every two months in Australia. 

22. The applicant was asked about his assets in Australia and said he had none.

23. The Tribunal put to the applicant that since his arrival in Australia in June 2017 he has only successfully completed one course of less than six months’ duration and the applicant agreed that that was correct.

24. The applicant was asked about his work and earnings since coming to Australia.  The applicant said he has not been doing any work at all since he came to Australia and has earned no money since he came to Australia.  The applicant said he is surviving solely on what his father sends and sometimes his brother-in-law helps him, if there are delays in receiving money from his father.

25. The applicant said the brother-in-law owns a firm called Aujla Transport and owns 10 to 12 trucks.  The applicant said he does not have a truck driver’s licence.  The applicant said he is not doing any work for his brother’s business. 

26. Based on this evidence the Tribunal finds that the applicant’s circumstances in Australia do not provide a strong incentive to remain in Australia other than for study purposes.

    The value of the current course 

27. Adopting the procedure in section 359AA of the Act the Tribunal put to the applicant that his belated enrolment after an unproductive 15 months, in proposed studies which bear no relevance to his past studies or past career as a bank executive, and which are unlikely to assist him to obtain employment or improve his employment prospects in his home country, might be a matter which leads the Tribunal to find that the proposed course is of no discernible benefit to the applicant in terms of assistance to finding employment or improving his employment prospects. If the Tribunal so finds, it might be all or part of the reason for the Tribunal finding that he is not a genuine applicant for entry and stay as a student and consequently affirming the decision under review, which would mean he would not be granted a student visa.

28. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.  The applicant said he would reply and the applicant said he had no future in banking and the position was not secure and he could be dismissed at a very short notice.

29. The Tribunal finds that the applicant’s proposed course is of value to the applicant in terms of assisting him to find employment or improving his employment prospects.

    The applicant’s immigration history 

30. The Tribunal noted the applicant’s failure to complete any of the courses he had enrolled in since December 2017.  Following the procedures in section 359AA of the Act the Tribunal put to the applicant that his record of non-completion might lead the Tribunal to find that he is not genuinely committed to his study and if the Tribunal so finds it might be all or part of the reason for the Tribunal finding that he is not a genuine applicant for entry and stay as a student and consequently affirming the decision under review, which would mean he would not be granted a student visa.

31. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.  The applicant said he would reply.  The applicant said when his visa was refused he had completed his English speaking course and at that time he was nervous because he did not know if his fees would be wasted or not.  At that time he went back to India and saw many restaurants and he thought to open his own restaurant.  His parents also asked him to study cookery and they would support him.  That was in February 2018.

32. Based on the foregoing the Tribunal finds that the applicant has not satisfactorily explained his poor record of completion during the 15 month period referred to.  This weighs against the applicant.

33. Following the procedures in section 359AA of the Act the Tribunal put to the applicant that following an unproductive 15 months he had now recently taken out certificates of enrolment for the same courses he had enrolled in and failed to complete during that period and that the Tribunal might consider this to be an attempt to use the student visa system to maintain residence in Australia, and if the Tribunal so finds it might be all or part of the reason for the Tribunal finding that he is not a genuine applicant for entry and stay as a student and consequently affirming the decision under review, which would mean he would not be granted a student visa.

34. The applicant confirmed that he understood this and was invited to comment or respond or seek additional time before doing so.  The applicant said he would reply and the applicant said that he did not know that he had to complete any course between then and the hearing.  The applicant said that when he was in India in February 2018 his father asked him to complete a course in cookery and then return to India as his parents are alone and he does not want to stay there.

35. The Tribunal finds the applicant’s explanation unconvincing as the applicant’s father asked him to pursue a cookery course in February 2018 and this does not explain the applicant’s unproductive period up until the issue of his current certificate of enrolments.  The Tribunal finds that the belated issue of the certificates of enrolments in the circumstances described is an attempt to use the student visa system to maintain residence in Australia.  This weighs heavily against the applicant.  The applicant said he just wants to complete his course and return back to India and that would be in 2021.

    Any other relevant matters

36. The Tribunal finds that there is no evidence of any other relevant matters before the Tribunal.

37. Weighing all of the foregoing the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily as a student. Accordingly, the applicant does not meet clause 500.212(a). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

38. 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.  The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa.

    DECISION

39. The Tribunal affirms the decision under review.

    Roger Maguire
    Member