Singh (Migration)

[2020] AATA 1210

Singh (Migration) [2020] AATA 1210 (16 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagdeep Singh

CASE NUMBER:  1903826

DIBP REFERENCE(S):  BCC2018/5462278

MEMBER:Robert Cumming

DATE AND TIME OF

ORAL DECISION AND REASONS:         16 January 2020 at 3:25 pm (QLD time)

DATE OF WRITTEN RECORD:                25 January 2020

PLACE OF DECISION:  Brisbane

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

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 9Student) – genuine student – genuine temporary entrant – reasonable academic progress to benefit future career – diploma level courses in unrelated fields – return visits to Pakistan – significant familial ties in Pakistan – application for permanent residence – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 359, 499
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 7 February 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 16 January 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 5 December 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 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 cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

5. The applicant appeared before the Tribunal on 16 January 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. 

6. The applicant was assisted in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded 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. The issue in the present case is whether the applicant intends genuinely to stay in Australia temporarily.

   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. The Tribunal has had regard to all the information supplied to the Department of Home Affairs with the visa application, which is in the Departmental file provided to the Tribunal, and all the information supplied to the Tribunal by the applicant.  In particular, the Tribunal notes the completed Request for Student Visa Information Form (Information form) received by the Tribunal on 3 December 2019.  Additionally, the Tribunal has had regard to the oral evidence and submissions given by the applicant at hearing.

13. The Tribunal notes that it has on its file certain information, which was not provided by the applicant.  These are printouts from the Provider Registration and International Student Management System (PRISMS) and also the Departmental movement records.  The Tribunal notes that the applicant has, in the Information form, given information to the same effect as the information contained in those two sets of printouts.  It should be noted that there was a slight discrepancy in relation to the movement records, which was satisfactorily explained at hearing as a typographical error.

14. As a result, the Tribunal has had regard to the information provided by the applicant rather than the information contained in the PRISMS records or the movement records. 

15. However, out of fairness, the Tribunal gave copies of the printouts to the applicant at hearing (under the provisions of s.359AA of the Act) and the applicant was given time to consider the material and to comment upon it. Having had time to consider the material, and to correct the error regarding travel dates, the applicant otherwise did not challenge the accuracy of the information in the printouts.

16. Based on all of the information before the Tribunal, the applicant’s circumstances may be summarised as follows:

    (a)The applicant is a 28 year-old citizen of India who first arrived in Australia on 27 September 2017. 

    (b)The applicant has links in his home country in the form of his mother and brother.  The applicant at hearing noted his family are a middle class family and do own property, which is in the names of his mother, himself and his brother since the unfortunate passing of his father in 2018.  The applicant keeps in contact with his family on a regular basis through telephone calls and electronic media applications.

    (c)As will be noted later in the decision, since his arrival in Australia the applicant has returned to India on one occasion. 

    (d)The applicant indicated in his completed Information form that he has no concerns in respect to requirements for military service commitments or political and civil unrest in the area of India where his family resides.

    (e)In India, the applicant had completed a Bachelor of Commerce.  Also, the applicant has property interests in India being agricultural property from which he earns an income.

    (f)In Australia, the applicant does not have any family members and does not really socialise widely and claims that he is somewhat lonely here.  He works part-time as a cleaner and earns approximately AU$25,000 annually for that. Any funding shortfalls are supplemented by his brother from India on request by the applicant.  It would seem, however, that his expenses annually are reported in the Information form as slightly under AU$14,000, which means he is able to live comfortably enough here.

    (g)Based on the information the applicant supplied in the Information form and as discussed in evidence at hearing, the applicant has completed the following courses:

    i.Certificate III in English as an Additional Language completed in April 2018;

    ii.Certificate IV in Leadership and Management completed in June 2019;

    iii.He is currently in the middle of studying his Diploma of Leadership and Management, which he commenced in August 2019, and which is due to be concluded in August 2020; and

    iv.Thereafter the applicant has an enrolment in an Advanced Diploma of Leadership and Management due to be undertaken from September 2020 to September 2021.

    (h)In regard to the applicant’s future intentions, the applicant indicated that he wished to complete his Diploma and Advanced Diploma in Leadership and Management after which time he would return home to India.  It was his intention to open a business in event management with a long term view that it would become a successful business, even extending to catering, and it was hoped that it would be a successful business.

    (i)Initial earnings were projected by the applicant at between 50,000 and 70,000 rupees a month, which roughly equates to between AU$1,000 and AU$1,500.

    (j)Based on the information supplied by the applicant to the Tribunal in his completed Information form, since his arrival in Australia he has departed Australia on one occasion in February 2018.  It was noted that his Information form said February 2019 but this was clarified at hearing to be a typographical error and the departure was in February 2018.  He returned home at that time for approximately a month, very sadly for him, to attend his father’s funeral.

    (k)In the documentary information provided to the Tribunal, and also at hearing, the applicant gave sufficient evidence of his knowledge of living in Australia and his associated education provider. 

    (l)The applicant had previously obtained a student visa and he indicated that, but for the current refusal of his visa application, he had not had any other Australian visas refused or cancelled.  His evidence is to the effect that he has complied with his visa conditions during his time in Australia. 

    (m)The applicant gave evidence that his travels only involved travel between India and Australia and that he had not travelled to any other countries.

    (n)Apart from dealing with issues of concern, as will be dealt with later in this decision, the applicant did not suggest there were, or give evidence concerning, any other matters which may relate to his genuine temporary entrant status in Australia.

17. During the hearing, the Tribunal put to the applicant possible concerns it may have in respect to several issues. 

18. The first and major issue was concerning the need for further studies to be undertaken by the applicant.  In this regard the applicant had given evidence in his visa application of the studies he would undertake in his Certificate IV at which stage it was his intention to return home to work in multinational corporations operating in India.   At hearing the applicant advised that his circumstances changed very sadly as the result of the passing of his father.  His intentions changed and he now wished to return to the area in Rajasthan where his family live and open his own business.  As stated, this is intended to be an event management business with a desire that it improve in its operations over time.

19. The concern the Tribunal had particularly was that, given his existing studies and the fact that he would be operating the business, it would not be necessary for him to be competing with any other applicants for these positions and he had sufficient knowledge already to undertake those studies.

20. The applicant was pressed at length to specify exactly what studies he would be undertaking and how that would assist him with his business.  Despite being pressed on this, the best that the applicant could put it was that these were advanced subjects and they would help him in his business.

21. A second issue the Tribunal put to the applicant was that he had mentioned undertaking catering and as such how could the Tribunal be satisfied that he would not then wish to undertake catering and hospitality management studies ranging from Certificate IV in Commercial Cookery through to a Diploma and Advanced Diploma in Hospitality Management.  The applicant stated that he had no intention of undertaking those studies and it was put in evidence, with the assistance of his migration agent, that he had no need for these studies because he would be in a managerial role and would not need the hands-on studies himself.

22. As stated however, the main concern the Tribunal had, which the applicant was not able to satisfactorily explain, is the necessity for his existing studies and the exact subjects he would be undertaking.  As said, this was expressed in general terms and would allow him to deal with marketing and other companies but specifically how that would assist him and what those subjects were and the specific skills, knowledge and attitudes he would gain was not forthcoming from the applicant.

23. Having had regard to the applicant’s evidence and submissions, and his responses to the possible concerns raised by the Tribunal as noted above, and giving consideration to all the factors specified in Direction No.69, the Tribunal makes the following findings:

    (a)While the Tribunal does note the applicant’s reasons for studying in Australia rather than in India, for the reasons detailed below, the Tribunal is not satisfied of the necessity or indeed the explanation for the applicant to undertake those studies and concludes they are being undertaken for reasons other than genuine study as a student in Australia temporarily.

    (b)The applicant has links in his home country in the form of his mother and brother.  However, the applicant’s conduct in remaining in Australia for approximately two years and four months with only one visit to India during that time; his intention to remain in Australia where he appears to have made a life for himself and where he has the financial support from his family, as well as being supplemented by income from his employment here; and the ability to remain in contact with his family on a regular, if not daily, basis by electronic means, all lead the Tribunal to conclude there is not a significant incentive for the applicant to return to his home country.

    (c)As to economic circumstances in the applicant’s home country, the Tribunal notes there is family support if he were to return.  In those circumstances, this leads the Tribunal to find that the economic circumstances of the applicant would not present a significant incentive for him not to return to his home country.

    (d)There are no requirements for military service commitments affecting the applicant which would present as a significant incentive for him not to return to his home country. 

    (e)There are no circumstances of political and civil unrest in the area where the applicant’s family are located in his home country which would present as a significant incentive for him not to return to his home country.

    (f)In considering the applicant’s circumstances in his home country relative to the circumstances of others in that country, the Tribunal finds that the applicant comes from a middle class family but otherwise does not make any findings in that regard which are other than entirely neutral towards the applicant.

    (g)The applicant has few ties to Australia but has the means of family support to remain in Australia and the ability to earn an income.  When this is coupled with the ability to remain in contact with his family by electronic means, as has already been noted, the combined effect of this and his situation in Australia, having the support to stay here, all lead the Tribunal to find this presents a strong incentive for the applicant to remain in Australia.

    (h)The applicant was pressed as to the reasons why he was studying his existing studies.  The applicant was asked why those studies would give him particular qualifications over and above that which he had already gained and the applicant was unable to satisfactorily explain the reasons for such studies other than generalised statements that these were advanced subjects which would help him.

    (i)In those circumstances, the Tribunal considers the applicant’s conduct is designed to help him remain in Australia and the continuation of his studies is designed to circumvent the intentions of the migration program. 

    (j)For similar reasons, the Tribunal considers the student visa is being used to maintain ongoing residence in Australia.

    (k)As there is no secondary applicant it is unnecessary for the Tribunal to consider whether the applicant has contrived a relationship for a successful student visa outcome.

    (l)The applicant has demonstrated adequate knowledge of living in Australia and his intended course of study and the associated education provider.

    (m)As noted above, the Tribunal is concerned as to the real reasons for the applicant undertaking the Diploma and Advanced Diploma of Leadership and Management and as such the Tribunal does not consider the applicant has satisfactorily explained how those qualifications will improve his employment situation when he is going to be running his own business.

    (n)For similar reasons, the Tribunal is unable to conclude how the Diploma and Advanced Diploma of Leadership and Management relates to his proposed future employment in his own business given the applicant’s inability to explain just what particular skills, knowledge and attitudes he will gain that he does not already possess.

    (o)In respect to remuneration, the Tribunal notes that the applicant’s stated intentions are to run his own business and he has ventured that he would earn approximately between AU$1,000 and AU$1,500 per month.  That equates to approximately $18,000 per annum, which is less than he is currently earning in his part-time job in Australia.

    (p)At hearing the applicant had been in Australia for approximately two years and four months during which time he had returned to his home country on one occasion.  Were the applicant to remain in Australia until the conclusion of his proposed studies, the applicant will have been in Australia for just on four years.

    (q)As to previous visa applications for the applicant, but for the current visa application under review, there is no evidence before the Tribunal that the applicant has previously been refused visas in Australia. 

    (r)There is no evidence before the Tribunal that any of the applicant’s previous visas in Australia have been cancelled. 

    (s)There is no evidence before the Tribunal that the applicant has travelled to countries other than Australia and his home country India, which makes it unnecessary for the Tribunal to consider whether the applicant has complied with the migration laws of any other country.

    (t)As noted, were the applicant to remain in Australia to the completion of his proposed studies he will have been in Australia for just on four years.  This will be in circumstances where the Tribunal is concerned as to the real reason for his studies, as dealt with above, and accordingly this leads the Tribunal to the conclusion that the use of the applicant’s student visa is primarily for the maintenance of ongoing residence in Australia and that he does not have a significant incentive to return to his home country.

    (u)As there is no child secondary applicant, it is unnecessary for the Tribunal to make any findings in that regard.

    (v)There are no other relevant matters that bear upon the conduct of the review as to the applicant’s status as a genuine temporary entrant. 

1. Balancing all these findings, the Tribunal considers that the weight of the evidence points more to those factors not favouring the applicant’s case rather than those factors which are supportive of his case.  Those matters, the Tribunal considers, weigh more heavily in its view to establish that there is not a significant incentive for the applicant to return to his home country and that the student visa is being used to maintain ongoing residence in Australia than do the other matters which are either neutral to or in the applicant’s favour.

2. Having had regard to all matters, including the Direction No.69 requirements to which regard is required, 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

3. 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.

4. 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

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

   Robert Cumming
   Member