Singh (Migration)

[2020] AATA 3026

Singh (Migration) [2020] AATA 3026 (24 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamalpreet Singh

CASE NUMBER:  1910303

DIBP REFERENCE(S):  BCC2018/5962038

MEMBER:Margaret Forrest

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 April 2020 at 2:06 pm (QLD time)

DATE OF WRITTEN RECORD:                18 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – limited community ties to home country – multiple course cancellations – gap in studies – applicant changed studies to several unrelated areas – relevance of studies to future employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65; Direction No 69
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 April 2019 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 24 April 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 4 January 2019.  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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine temporary entrant.

5. The applicant appeared before the Tribunal on 24 April 2020 by phone to give evidence and present arguments.  The applicant was assisted in relation to the review by his registered migration agent.   However, the applicant’s registered migration agent did not appear at the hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone having regard to the nature of this matter and the individual circumstances of the applicant.  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. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  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 clause 500.211 to clause 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.

   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, 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.

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. On 23 April 2020, the Tribunal sent the applicant a copy of his Provider Registration International Student Management System (PRISMS) record.  The Tribunal indicated that the Member may refer to the PRISMS record during the hearing on 24 April 2020.  On the basis that the applicant’s PRISMS record includes information that is entirely consistent with information already provided by the applicant, the Tribunal has not relied on the PRISMS record and did not put this information to the applicant during the hearing.

13. The applicant confirmed that all the information in the information form he submitted to the tribunal on 24 January 2020 is correct.  The applicant confirmed that he arrived in Australia on 21 June 2013.  The applicant arrived in Australia on a Subclass 573 student visa.  Since the time that visa expired, the applicant has been granted two further visas in Australia.  The applicant was first a dependant on a Subclass 573 visa and then a dependant on a Subclass 485 visa.

14. The applicant applied for his current student visa on 4 January 2019.  When the applicant submitted his application for a student visa, he was proposing to study a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Overhauling.

15. The applicant confirmed that he is presently studying a Certificate III in Light Vehicle Mechanical Technology and that he is also enrolled in a Certificate IV in Automotive Mechanical Overhauling that is scheduled to conclude in July 2021.  The Tribunal accepts this evidence of the applicant.

16. The applicant told the Tribunal that he previously completed high school in India before arriving in Australia.  Since arriving in Australia, the applicant has completed the following courses: 

    a.a Diploma of Management and

    b.an Advanced Diploma of Management. 

17. The applicant told the Tribunal that since arriving in Australia he has been enrolled in the following courses, but has not completed them: 

    a.a Certificate IV in Business;

    b.a Diploma of Business;

    c.a Bachelor of Business;

    d.a Certificate IV in Commercial Cookery;

    e.a Certificate III in Light Vehicle Mechanical Technology; and

    f.a Certificate IV in Automotive Technology.

18. The applicant told the Tribunal that he was not enrolled in a course and studying between September 2019 and December 2019 due to a maxillofacial disorder.

19. The Tribunal asked the applicant about the circumstances in his home country.  In the information form the applicant submitted to the Tribunal, the applicant was asked why he was unable to complete his current set of courses in India.  The applicant responded that Australia is known for its strong education credentials, recognised by international institutions and employers and provides the skills and knowledge to the student to embellish their personality, both personally and professionally.  Moreover, the Australian Qualification Framework is focused on both theoretical and practical knowledge, whereas in India, the main focus is on the theoretical part.  Australia offers a range of courses in a variety of fields, varying from Certificates to Master’s Degrees.

20. The Tribunal asked the applicant about his personal ties to India.  The applicant confirmed that he separated from his wife in 2018 but they continued living together after this time.  The applicant confirmed that he and his wife divorced in 2019.  The applicant said he has no children.

21. The applicant confirmed that his parents and brother continue to reside in India.  The applicant said he last saw his parents in December 2018 and his brother in January 2016.  The applicant said that he contacts his family in India two to three times a week by video call, message and audio call.

22. The applicant told the Tribunal that since arriving in Australia he has not left.  That is a period of six years and 10 months.  The applicant said that his parents have visited him in Australia three times and his mother-in-law visited three times, while his father-in-law visited once.

23. The applicant said that he and his wife were married in 2016 and they were planning to go to India in 2017 but his parents decided that they would come to Australia first and then his in-laws came to Australia.  The applicant said that after he was divorced in 2019, he was depressed and did not make a plan to go to India at this time.

24. The applicant also said that when he was on a bridging visa for a period of approximately 18 months to two years, there was a condition on his visa that he was not entitled to leave the country.

25. The applicant told the Tribunal that he has no assets in his name in India but there are assets in his father’s name.  The applicant said that he does not have community ties in India because the friends he used to study with have gone to work in different countries. 

26. On the basis of this evidence, the Tribunal finds that the applicant’s family and community ties to India do not, of themselves, present a significant incentive for the applicant to return to India.  In making this finding, the Tribunal has placed significant weight on the fact that the applicant has been in Australia for a period of six years and 10 months, and has not returned to India to visit his family.  Although the applicant’s parents have visited Australia three times while the applicant has been here, and there was a period of between 18 months and two years when the applicant could not leave Australia if he wanted to maintain his visa, the Tribunal places more weight on the fact that the applicant has been in Australia for a significant period of time and has chosen not to return to India during this time.

27. The Tribunal asked the applicant about his potential circumstances in Australia.  The applicant confirmed that he no longer has any family in Australia now that he is divorced.  The applicant said he presently has no partner.  The applicant confirmed he has no property in Australia and that before the COVID-19 pandemic he used to go to the Sikh temple four or five times per week.

28. The applicant confirmed he presently works as an Uber driver.  The applicant said he was working full-time as an Uber driver but he is now only working one to two days per week due to safety reasons relating to the COVID-19 pandemic. 

29. On the basis of this evidence, the Tribunal considers that, on balance, the applicant’s family and community ties to Australia do not, of themselves, present a significant incentive for the applicant to remain in Australia.

30. The Tribunal asked the applicant why he did not complete the Certificate III in Light Vehicle Mechanical Technology and Certificate IV in Automotive Mechanical Overhauling that he was enrolled in when he first applied for his visa.  The applicant said that he enrolled as an international student in these courses in November 2018.  The applicant then applied for the visa in January 2019.  The applicant’s visa application was refused in April 2019.

31. The applicant said he was supposed to finish his first course – the Certificate III in Light Vehicle Mechanical Technology – in November 2019.  The applicant said he was supposed to finish his Certificate IV in Automotive Mechanical Overhauling in July 2020.  The applicant said there was an issue with his teacher at his skills institute.  The applicant said his attendance fell short and he gave the college a medical certificate but they did not accept it and they cancelled his confirmation of enrolment certificate.

32. The applicant told the Tribunal that around September 2019 he was driving his Uber, and when he dropped a passenger off something hit his cheekbone under his eye which caused his cheekbone to fracture.  The applicant said this resulted in him not being able to study between September 2019 and December 2019. 

33. The applicant also submitted medical information from the Garden City Family Doctors that indicates he suffered from depression and anxiety.  These documents cover the period from 21 August 2019 to 25 September 2019.  On balance, the Tribunal accepts the applicant’s evidence about why he was unable to complete the original set of courses he was enrolled in when he applied for the student visa.

34. The applicant told the Tribunal he commenced these courses a second time in December 2019.  The Tribunal accepts that the applicant is presently enrolled in a Certificate III in Light Vehicle Mechanical Technology and is enrolled in a Certificate IV in Automotive Mechanical Overhauling that is due to commence in the future.

35. The Tribunal asked the applicant why he swapped the focus of his studies from business to management.  The applicant indicated that he came to Australia to study business, but that he developed an interest in commercial cookery after working as a kitchen hand, and this is the reason that he enrolled in management-related courses.

36. The Tribunal asked the applicant why he did not complete his initial set of business courses.  The applicant said that he paid his fees but it was all very new and he was not able to understand anything, so he did not complete these courses.

37. The Tribunal asked the applicant why he swapped the focus of his studies from management to commercial cookery.  The applicant said that this was because of his job where he was working as a kitchen hand.  The applicant said he wanted to gain experience and a certificate in the area in which he was working.

38. The Tribunal asked the applicant why he did not complete his Certificate IV in Commercial Cookery.  The applicant said that he got married in 2016 and he left his job working in a kitchen to work in a factory.  The applicant said he had no reason to continue studying because his wife was studying at the time.  The applicant said he attempted to obtain credit for the seven or eight months he had spent studying his Certificate IV in Cookery but was ultimately not granted a qualification.

39. The Tribunal asked the applicant why he swapped the focus of his studies from cookery to the automotive industry.  The applicant said that he was working as an Uber and taxi driver and he was going to the mechanic shop, and he saw that they were earning good money.  He said a friend of his suggested that he pursue studies in this area.

40. The Tribunal is concerned that the applicant has swapped the focus of his studies a number of times since arriving in Australia.  The applicant has swapped the focus of his studies from business to management to commercial cookery and now to automotive studies.  The Tribunal is concerned that the applicant has swapped the focus of his studies between a number of unrelated areas since he arrived in Australia.  On balance, the Tribunal does not accept the applicant’s evidence in relation to the reason he has swapped the focus of his studies.

41. The Tribunal asked the applicant when he plans to leave Australia.  The applicant told the Tribunal that after he completes his current set of courses, he plans to complete a Diploma in Light Vehicle Mechanical Technology which would take another year, until July 2022.  The applicant said that after he completes this course, he may complete another course related to becoming a diesel mechanic.  The applicant said this course would take another one and a half years.  The applicant also said that he may work in Australia to gain experience as a mechanic after he completes his studies and before he goes back to India.

42. The applicant said he has not decided whether he will pursue further study in his home country, or Canada, or Australia, or whether he will pursue employment in any of these places.  The Tribunal is concerned that the applicant is planning to stay in Australia until at least July 2022 and was unable to tell the Tribunal when he plans to leave Australia after this point.

43. The Tribunal asked the applicant about the value of his current courses to his future plans.  The applicant said in his genuine temporary entrant statement to the Department that he plans to return to India and seek a position as a motor mechanic. 

44. In the delegate’s decision, the delegate referred to the applicant returning to Italy to seek a position as a motor mechanic.  The Tribunal accepts that this is an error and that the decision should have referred to the applicant returning to India to seek a position as a motor mechanic.

45. In the information form the applicant submitted to the Tribunal, he indicated that he will search for a relevant job option in the field of his study and interest.  The applicant says that after he completes his study, he will be able to work as a well-qualified mechanic to repair machines.  The applicant said he will be able to work in many multi-national companies.

46. The Tribunal asked the applicant whether this was still his current plan.  The applicant said that he does still plan to work in India as a motor mechanic.  The applicant said however he would need experience before doing so.  The applicant also said he wants to acquire a certificate as a diesel mechanic before pursuing this future plan.

47. The applicant said he may seek work with his friend, who is working as a motor mechanic in Moorooka, after he finishes his study and before he goes back to India.  The applicant said he wanted to get experience as a motor mechanic after he completes his study.

48. The Tribunal asked the applicant if he has applied for any jobs as a motor mechanic in India.  The applicant said he had not because he is not qualified yet.  The applicant said that he had wasted three or four years in Australia while he was not studying.

49. The Tribunal then asked the applicant for details about his plan to work as a motor mechanic for a multi-national company in India.  The applicant said that he was thinking about starting his own business in India.  The applicant said he wants to go to India with experience before he starts his own business.  The applicant confirmed that he has no written business plan for this business and that, at the moment, it is just an idea.

50. The Tribunal asked the applicant why he requires his current set of courses in order to pursue his future plans.  The applicant said that if he has experience and is qualified, he would be able to set up his own business in India.  The applicant said that in India all mechanics do not have certificates but he would be able to open his own business with a qualification from overseas.  The applicant said he thinks this would be better for business and that there would be a preference for this.

1. The applicant has provided conflicting information to the Tribunal about his future plans.  The applicant was unable to tell the Tribunal, with any certainty, when he plans to leave Australia.  The applicant said that he may complete further study in Australia and he may seek to gain work experience in Australia after he completes this study and before he returns to India.  The applicant has also provided only vague details about his future plans and has failed to explain, in any meaningful detail, why he requires his current set of courses in order to achieve these future plans.

2. The applicant told the Tribunal that prior to coming to Australia he was not working in India.  The applicant said that he was working for his father’s business before he arrived in Australia, but he was not being paid for this.  The applicant said that before the COVID-19 pandemic, when he was working full-time as an Uber driver, he was earning somewhere between AU$35,000 and AU$50,000 per year.  The applicant indicated that if he returns to India to work as a motor mechanic, he expects to earn between IR20,000 and IR30,000 per month.  That is between approximately AU$4900 and AU$7500 per year.

3. The applicant told the Tribunal that he is not sure what his remuneration would be if he established his own business.  The applicant said that the information about his expected remuneration for working as a motor mechanic in India is based on information his friends have told him.  On the basis of the Tribunal’s earlier findings about the applicant’s future plans, the Tribunal does not accept this evidence of the applicant.

4. The Tribunal considers that the applicant’s economic circumstances in Australia, specifically his capacity to earn Australian dollars in ordinary employment, present a significant incentive for the applicant to remain in Australia.

5. The Tribunal has taken into account the applicant’s immigration history insofar as the applicant has been in Australia for a period of six years and 10 months.  The applicant has only completed two courses during this time and has been enrolled in a number of other courses that he has not completed.  The Tribunal has already found that it does not accept the applicant’s evidence in relation to his reasons for swapping the focus of his studies, since being in Australia, a number of times.

6. 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.  The Tribunal has found that the applicant’s family and community ties in Australia do not, of themselves, constitute a significant incentive for the applicant to remain in Australia.

7. However, when the following evidence and findings are considered, the Tribunal finds that, on balance, the Tribunal is concerned that a further visa may be used primarily to maintaining ongoing residence, that is:

   a.the Tribunal’s finding that the applicant’s family ties to India do not, of themselves, constitute a significant incentive for the applicant to return to India,

   b.the applicant has been in Australia for a period of six years and 10 months and has swapped the focus of his studies a number of times since arriving in Australia,

   c.the applicant has also been enrolled in a number of courses which he did not complete,

   d.the applicant provided vague and conflicting information about his future plans and was unable to tell the Tribunal when he plans to leave Australia, and

   e.the tribunal’s finding that the applicant has failed to explain, in any meaningful detail, why he requires his current set of courses in order to achieve his future plans.

8. On this basis, 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).

   Conclusion on cl.500.212

9. 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.

10. Given this finding, 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

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

    Margaret Forrest
    Member