SINGH (Migration)

[2020] AATA 5980

SINGH (Migration) [2020] AATA 5980 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PARMINDERJIT SINGH

CASE NUMBER:  1835002

DIBP REFERENCE(S):  BCC2018/3402538

MEMBER:Peter Newton

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 October 2020 at 10:55 am (NSW time)

DATE OF WRITTEN RECORD:                20 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 November 2020 at 3:29pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met–an economic incentive to remain in Australia –no strong incentive to return to home country –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 November 2018 (Department’s Decision) to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Act).

2. At the hearing on 27 October 2020 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 7 September 2018.  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.

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 of Schedule 2 of the Migration Regulations 1994 (Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily.

5. The applicant appeared before the Tribunal by telephone on 27 October 2020 to give evidence and present arguments.  The applicant was assisted in relation to the application for review by his registered migration agent.  The applicant’s registered migration agent did not appear at the hearing.

6. The hearing was held during the COVID-19 pandemic.  The Tribunal exercised its discretion to hold the hearing by telephone.  The Tribunal determined it was reasonable to hold the hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant which include the fact that the applicant’s current course of study commenced on 26 October 2020.  The Tribunal considered that it was necessary to hear the application promptly so as to provide the applicant with certainty in relation to his visa status in Australia.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick and the delay to the matter if the hearing was not to be conducted by telephone.

7. During the hearing the Tribunal was satisfied that the applicant heard and understood the outline given at the commencement of the hearing as to how the hearing would proceed and the questions asked during the hearing which he answered.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. Prior to the hearing, the applicant provided to the Tribunal a copy of the Department’s Decision, a completed Request for Student Visa Information (Request), a four page written submission by the applicant (Submission), an Overseas Student Confirmation of Enrolment (CoE) for a Bachelor of Business (Accounting) course at Australian Polytechnic Institute recording a course start of 26 October 2020 and course end date of 16 October 2022 and certificates for the courses of study the applicant has completed in Australia.  Prior to the hearing the applicant also provided to the Tribunal a Response to Hearing Invitation dated 30 September 2020.

9. The Tribunal has read the documents provided by the applicant to the Tribunal and considered the applicant’s evidence and submissions.

   Consideration of Claims and Evidence.

10. The criteria for 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 meets the genuine temporary entrant criterion.

11. 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.

12. In considering whether the applicant satisfies clause 500.212(a), the Tribunal must have regard to Direction 69 ‘Assessing the genuine temporary entrant criterion for student visa and student guardian applications,’ made under section 499 of the Act) (Direction).  The Direction requires the Tribunal to have regard to several 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.

13. 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.

14. In considering whether the applicant meets the genuine temporary entrant criterion, I have had regard to the applicant’s evidence and submissions and each of the factors specified in the Direction.  The factors were used to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. In relation to paragraph 9(a) of the Direction, the applicant’s home country is India.  The applicant provided to the Tribunal the CoE for the Bachelor of Business (Accounting) course at Australian Polytechnic Institute.  As stated, the CoE records a course start date of 26 October 2020 and a course end date of 16 October 2022.  In these reasons I will refer to this course as the applicant’s current course of study.

16. During the hearing I asked the applicant whether there were similar courses available in his home country or region to his current course of study.  The applicant says he is unsure.  He said he came to Australia when he was 21.  He said that since first coming to Australia he has studied here.  He says he wants to continue studying here because it is easier for him.

17. In the Request, the applicant disclosed that he first arrived in Australia on 26 November 2008.  The applicant disclosed that since first arriving in Australia he has completed the following courses of study during the periods shown below:

    a.    Certificate III Commercial Cookery and Diploma of Hospitality during the period August 2008 to April 2011;

    b.    Certificate IV Frontline Management during the period June 2011 to December 2011;

    c.     Diploma of Management during the period January 2012 to December 2012;

    d.    Advanced Diploma of Management during the period January 2013 to July 2013;

    e.    Diploma of Human Resource Management during the period September 2013 to March 2014;

    f.   Advanced Diploma of Human Resource Management during the period May 2014 to November 2014;

    g.    Certificate IV in Marketing during the period January 2015 to October 2015;

    h.    Diploma of Marketing during the period November 2015 to November 2016;

    i.     Advanced Diploma of Marketing during the period January 2017 to July 2018.

18. The applicant was previously enrolled in a Bachelor of Business (Marketing) course at Kaplan Business School.  That course was due to commence in November 2018.  In his written submission, the applicant submits:

    “I started my course at Kaplan in November 2018 and soon after a week, I got the news that my student visa was rejected.  This news affected my mental health in a very bad way. . . . I started going into depression and the plan of opening up my restaurant started vanishing away.  I started feeling worthless and even started getting suicidal thoughts and panic attacks.  I never seek help from any professional because of the fear of losing my strong image  and reputation in the eyes of others.  I started thinking that a visa refusal is a big failure and that I am a loser.  I stopped doing everything that I used to love and started isolating myself from others so that I never have to tell about my failure to others.  I stopped going to college and even stopped thinking about studying as thinking about it gave me stress and whenever it would cross my mind, I wanted to do physically hurt myself. . . . I always had a dream of opening up my own business and after spending so much time, effort and money on the education and not reaching anywhere near your goal was the thing eating me from inside badly. . . . My mental condition and the effects of visa refusal made me put break on my studies and look after my mental wellbeing for a time.

    I choose Australia for my higher education in the first place because I was impressed with its education has achieved world standard and Australian qualifications are recognized worldwide.  My education experience in Australia has been amazing so far.  I have had a wonderful time studying under the Australian education system and soaking up the culture and environment here.  I have learnt a lot and grown as person with the amount of international exposure I have received.  It has been an eye-opening experience and I still want to pursue my dream of opening up my own restaurant.  I want to complete my bachelors and equip myself with a qualification which will help in brighten my future prospects.”

19. During the hearing the applicant said that he has managed and recovered from his depression and he is now in a good place to resume his studies.  Having regard to the above evidence, the period of time the applicant has been in Australia and his study experience in Australia, I am satisfied that the applicant has reasonable reasons for not undertaking his current course of study in his home country or region if a similar course is already available there.  On the evaluative exercise I am required to undertake, I give this factor weight in favour of the applicant.

20. In relation to paragraph 9(b) of the Direction, the applicant was born in India on 20 January 1988.  In the Request, the applicant disclosed that his mother and brother continue to live in India.  During the hearing the applicant said that his father is deceased.  In the Request, the applicant disclosed that he contacts his mother and brother in India by social media two to three times a week.

21. As stated, the applicant first arrived in Australia on 26 November 2008.  Since first arriving in Australia the applicant has only returned to his home country once in August 2017 for one month to “meet family and attend family function.”

22. In the Request in the part that requests details of the main applicant’s community ties, if any, in their home country the applicant did not provide any information.

23. The evidence establishes that the applicant’s ties with his home country are his mother and brother.  I do not consider that these ties alone serve as significant incentive for the applicant to return to his home country.  This finding is supported by the fact that since first arriving in Australia on 26 November 2008, the applicant has only returned to his home country once in August 2017 for one month.  This is notwithstanding that whilst the applicant has completed nine courses of study in Australia since first arriving, those courses of study varied in duration from six months to three years.  For this reason, I do not consider that the applicant’s study commitments have prevented him from returning to his home country or region.  On the evaluative exercise I am required to undertake I give the factor specified in paragraph 9(b) of the Direction weight against the applicant.

24. In relation to 9(c) of the Direction, during the hearing the applicant did not accept that his economic circumstances would present as a significant incentive for the applicant not to return to his home country.  The applicant said that all “our property” is in India.  He said that when he finishes his current course of study, he will return to India to establish a business.

25. During the hearing the applicant indicated that he does not personally own any property.  He said his mother and brother owns property but “mostly in my mother’s name”.

26. As stated, the applicant has been in Australia since 26 November 2008, save for a period of one month in August 2017 when he returned to his home country.  In the Request the applicant disclosed that prior to coming to Australia he worked in a restaurant as a chef/cook during the period June 2006 to July 2008.  There is no evidence the applicant has any ongoing work connections in his home country.

27. As stated, the applicant says that upon completing his current course of study he intends to return to his home country to set up a restaurant.  In the Request the applicant states:

    “As part of my plans, I would return to India after finishing my studies and start working in a multi-cuisine restaurant.  I also wish to participate in MasterChef India as a contestant.”

28. In the Request in the part that requests details of the remuneration the main applicant expects to receive in their home country, or a third country, using the qualifications they will gain from their current and/or proposed study, the applicant provided the following information:

    “I can expect to earn around 70,000 INR initially as a chef.  My income will increase as I rise through ranks.  My goal in the end is to open a specialty restaurant once I have enough capital to do so.”

29. During the hearing the applicant accepted that 1 AUD is equal to approximately 52.65 INR (Indian Rupee).

30. In the Request the applicant disclosed that since first arriving in Australia he has worked as a chef.  The Request discloses that since June 2014 the applicant has had continuity of work as a chef.  During the hearing the applicant said that he currently works on a casual basis and receives approximately 420 AUD per week.  The applicant accepted that his annual income is approximately 21,840 AUD.  On an exchange rate of 1 AUD equals 52.65 INR, the applicant’s current income for working on a casual basis in Australia is approximately 1,149,876 INR.

31. Having regard to this evidence, I consider that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to his home country.  On the evaluative exercise I am required to undertake I give this factor weight against the applicant.

32. In relation to paragraph 9(d) and 9(e) of the Direction, in the Request the applicant disclosed that he has no concerns about military service commitments or political or civil unrest in his home country.  I do not consider that this evidence provides an incentive to remain in Australia or deterrent to returning to his home country.  Accordingly, on the evaluative exercise I am require to undertake, I assess these factors as neutral.

33. In relation to paragraph 10 of the Direction, the evidence does not enable me to assess the applicant’s circumstances in his home country relative to the circumstances of others in his own country.

34. In relation to paragraph 11(a) of the Direction, as stated the applicant first arrived in Australia on 26 November 2008.  During the hearing the applicant said that since first arriving in Australia he has lived in six different places of residence.  In the Request, the applicant disclosed that since first arriving in Australia he has worked as a chef for the following employers:

    a.    Mezba Café during the period June 2014 to February 2015;

    b.    River Canyon Restaurant during the period March 2015 to May 2018;

    c.     RSL Club during the period June 2018 to January 2019;

    d.    Rio Brazilian Restaurant during the period January 2019 to June 2019;

    e.    Butchers Block Restaurant during the period June 2018 to January 2020.

35. During the hearing the applicant said that he continues to work as a chef.

36. During the hearing the applicant reluctantly accepted that he has established friendships in Australia, although he says that he does not have many friends.  I infer from the evidence that the applicant has also established work connections in Australia.  In his written submissions the applicant submits:

    “I’ve had a wonderful time studying in the Australian education system and soaking up the culture and environment here.  I have learnt a lot and grown as a person with the amount of international exposure I have received.  It has been an eye-opening experience, and I still want to pursue my dream of opening up my own restaurant…”

37. I infer from this evidence that the applicant has a strong affinity with the Australian living and working environments.

38. The evidence establishes that the applicant’s ties with Australia are his friends, work connections and his affinity with the Australian living and working environments.  I find that these ties would present as a strong incentive for the applicant to remain in Australia.  On the evaluative exercise I am required to undertake, I give this factor weight against the applicant.

39. In relation to paragraph 11(b) of the Direction, in the Request the applicant disclosed that he has held four student visas.  I have set out above the courses of study the applicant has completed since first arrived in Australia.  Having regard to this evidence, I am satisfied that the student visa program has not been used to circumvent the intentions of the migration program.  On the evaluative exercise I am required to undertake, I give this factor weight in favour of the applicant.

40. In relation to paragraph 11(c) of the Direction, the applicant has been studying in Australia since August 2008 save for the period of almost two years when the applicant ceased studying the Bachelor of Business (Marketing) course at Kaplan University in November 2008 due to depression arising from the decision of the Department of Home Affairs to refuse the applicant’s application for a further student visa.

41. During the hearing when asked, the applicant was not able to tell me anything specific about his current course of study.  He indicated this is because he had only commenced studying the course.  The course start date was the day before this hearing.  Nevertheless, I would expect a genuine student proposing to undertake a bachelor degree for a period of approximately two years (the CoE records a course start date of 26 October 2020 and course end date of 16 October 2022) to have undertaken a reasonable level of research in relation to their proposed course of study and formed a specific understanding of the course curriculum.  When asked, the applicant was also unable to provide any specific reasons as to how his current course of study will assist the applicant in establishing a restaurant in his home country other than by providing general statements to the effect that his current course of study will teach him how to keep accounting and that in opening his own restaurant he needs to know how to keep money.

1. Having regard to the period of time applicant has been in Australia and the generality of the applicant’s evidence in relation to his current course of study and how it will assist him in establishing a restaurant in his home country, I am concerned that the student visa is or may be used to maintain ongoing residence.  On the evaluative exercise I am required to undertake, I give this factor some weight against the applicant.

2. In relation to paragraph 11(d) of the Direction, there is no secondary or dependent applicant.  Accordingly, the consideration of whether the primary and secondary applicant(s) have entered into a relationship of concern for a successful student visa outcome is not relevant to my determination.

3. In relation to paragraph 11(e) of the Direction, having regard to the period of time the applicant has been living in Australia I accept that the applicant has a sound and informed knowledge of living in Australia.  The applicant says that he has been living in his current place of residence for approximately six months.  He therefore has established living arrangements.

4. In relation to the applicant’s current course of study and the associated education provider, during the hearing, when I asked the applicant about his knowledge of his current course of study he said that he was new to the course.  He said the course will help him manage money in business.  He said that he is new to the accounting course and accepted that he does not know very much about the course yet.  He said that he expects to learn about how to manage money.  As indicated, I do not find this evidence satisfactory.  I would expect that a genuine student proposing to undertake a bachelor degree for a term of approximately two years to have conducted a reasonable level of research into the proposed course of study and be able to provide more specific knowledge of the course curriculum.  During the hearing when I asked the applicant what research he had undertaken prior to enrolling in his current course of study he indicated that he had spoken to family in India, his agent, lecturer and friends.  I do not consider that this is a realistic or reasonable level of research into a bachelor degree.  I would expect a genuine student to make enquiries with the course provider and obtain information about the course curriculum.  There is no evidence that the applicant made such enquiries.

5. During the hearing when I asked the applicant why he selected the Australian Polytechnic Institute to study his current course of study, the applicant said that he had heard that that institute had good teachers and standard of studying.  He said he had spoken to his agent who informed him that it is, “much better if you go there.”  I consider this evidence of the research the applicant has undertaken in relation to his current course of study and the associated education provider is far too general to place any weight on.

6. Overall, having regard to the factors specified in paragraph 11(e) of the Direction, I find that the applicant has a sound knowledge of living in Australia and established living arrangements.  I find that the applicant has very general and limited knowledge of his current course of study and the associated education provider.  On the evaluative exercise, I am required to undertake, I give the factors specified in paragraph 11(e) of the direction some weight against the applicant. 

7. In relation to paragraph 12(a) of the Direction, the evidence does not enable me to make an informed assessment of whether the applicant’s current course of study is consistent with his current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in his home country.

8. In his written Submission, the applicant submits: 

   “After completion of course, I want to return to India to my family.  I belong to a well-to-do family and have come to Australia to experience the great exposure.  I will go back to help my family.  We have our own house, so financials would not be a problem after I return.  Hence, I can competently say that our economic condition in my home country is sound.  After obtaining the required learning and understanding of the applied course, I will return to my family as I miss them a lot.  I am looking forward to fulfilling my education pursuit, as such, the knowledge earned from this course will enhance my capabilities and will help in finding a suitable position in my home country from where I can gain considerable of business and food industry experience which can be used to set up my dream business.  I am very much excited to commence my course and complete it as soon as possible so I can commence working in my dream business setup.” 

9. The above evidence of the applicant is far too general to enable me to make an informed assessment of whether the applicant’s current course of study will assist the applicant to obtain employment or improve employment prospects in his home country.  Accordingly, on the evaluative exercise I am required to undertake, I assess the factors specified in paragraph 12(a) of the Direction is neutral. 

10. In relation to paragraph 12(b) of the Direction, having regard to the limited evidence the applicant has given in relation to his current course of study, I am unable to make an informed assessment of the relevance of the course to his past or proposed future employment in his home country.  Accordingly, on the evaluative exercise I am required to undertake, I assess the factors specified in paragraph 12(b) of the Direction is neutral.

11. In relation to paragraph 12(c) of the Direction, having regard to the evidence I have considered above, in relation to paragraph 9(c) of the direction, I find that the remuneration the applicant could expect to receive in his home country is less than compared with Australia, using the qualification to be gained from his current course of study.  On the evaluative exercise I am required to undertake, I give this factor weight against the applicant.

12. In relation to paragraph 14(a)(i) of the Direction, in the Request the applicant disclosed that other than the current student visa application that is the subject of this application for review, the applicant has never previously applied for an Australian visa that has been refused.  In the Request the applicant disclosed that he has previously been granted four student visas to study in Australia.  Save for this application for review, there is no evidence that the applicant has previously applied for a visa that is yet to be finally determined.  On the evaluative exercise I am required to undertake, I assess this visa application history as neutral.

13. In relation to paragraph 14(a)(ii) of the Direction, during the hearing the applicant said that his only travelled to Australia and India.  There is no evidence the applicant has previously applied for a visa to a country other than Australia.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

14. In relation to paragraph 14(b)(i) of the Direction, the applicant first arrived in Australia on 26 November 2008.  The applicant has been granted student visas and associated bridging visas.  There is no evidence the applicant has failed to comply with the conditions of the visas granted to him.  I would expect all applicants to comply with the conditions of their visas.  This is what is required.  I do not consider applicants should be given credit for doing what is required and for acting lawfully.

15. In relation to paragraph 14(b)(ii) of the Direction, in the Request the applicant disclosed that he has never held a visa that was cancelled or considered for cancellation.  On the evaluative exercise I am required to undertake, I assess this factor as neutral.

16. In relation to paragraph 14(b)(iii) of the Direction, the applicant has been in Australia since 26 November 2008 on student visas and associated bridging visas.  The applicant is currently enrolled in the Bachelor of Business (Accounting) course.  This bachelor degree course is for a period of approximately two years.  During the hearing, the applicant provided little information in relation to his knowledge of the course other than the general statements referred to above. 

17. In the Request, the applicant disclosed that he plans to return to India after completing his studies and start working at a multi-cuisine restaurant.  Other than providing general statements, which I have referred to above, the applicant was unable to identify how the applicant’s current course of study would assist him in obtaining work in his home country and working in or setting up a restaurant.  The applicant has worked in India as a chef and in Australia as a chef.  I infer from this that he has informed knowledge of how kitchens and restaurants work.  The applicant was unable to provide any specific information about his current course of study or how it will assist him to obtain work or improve his employment prospects in his home country. 

18. Because of this and having regard to the period of time the applicant has been in Australia and the period of time he will remain in Australia for him to undertake the bachelor degree, I infer that the student visa the applicant has applied for may be used primarily for maintaining ongoing residence.  On the evaluative exercise I am required to undertake, I give this factor some weight against the applicant.

19. In relation to paragraph 14(b)(iv) of the Direction, during the hearing the applicant said that he has only travelled to Australia and India.  Accordingly, on the evaluative exercise I am required to undertake, I assess the factors specified in paragraph 14(b)(iv) of the Direction as neutral. 

20. In relation to paragraph 15 of the Direction, the applicant is not a minor.  Accordingly, the consideration of the intentions of a parent, legal guardian or spouse are not relevant to my determination. 

    Conclusion

21. Having regard to the evidence and submissions which I have considered against the factors specified in the Direction, on balance, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.  Accordingly, the applicant does not meet clause 500.212(a) and 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. 

22. 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

23. The Tribunal affirms the decision under review.

    Peter Newton
    Member