Singh (Migration)

[2019] AATA 5663

Singh (Migration) [2019] AATA 5663 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jatinder Pal Singh

CASE NUMBER:  1817321

DIBP REFERENCE(S):  BCC2018/1545291

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         29 October 2019 at 3:11 pm (VIC time)

DATE OF WRITTEN RECORD:                16 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the criteria in Clause 500.212 of Schedule 2 to the regulations for a subclass 500 Student Visa

Statement made on 16 December 2019 at 9:10am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to stay or return – value of study to future plans for small business in India – expectation to look after parents – decision under review remitted

LEGISLATION

Migration Regulations 1994 (Cth), 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 24 May 2018 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 29 October 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. To be eligible for the grant of a student visa a person must be a genuine applicant for entry and stay as a student, having a genuine intention to stay in Australia temporarily.  The applicant must also intend to comply with any conditions subject to which the visa is granted. This is known as the genuine temporary entrant criterion under Clause 500.212.

4. The applicant applied for the student visa on 5 April 2018.  The application was refused by the ministerial delegate on 24 May 2018 because the delegate, after considering the applicant’s circumstances, immigration history and other relevant matters, was not satisfied that the applicant genuinely intended to stay in Australia temporarily.

5. The delegate concluded that on balance the information that the applicant had provided regarding the circumstances in their home country, potential circumstances in Australia, the value of the proposed courses to their future, the immigration history and other relevant matters were insufficient to demonstrate that he was a genuine temporary entrant.

6. The delegate found that the applicant was not a genuine student but rather appeared to be using the student visa program as a means of maintaining ongoing residence in Australia and did not intend to stay in Australia temporarily.

7. The applicant applied to have that decision reviewed by this tribunal.  As is explained in the primary decision of the delegate, when considering whether someone is a genuine student it is necessary for decision makers to have regard to the factors set out in Ministerial Direction number 69.  These issues are discussed in the applicant’s primary decision and they include circumstances in the applicant’s home country, potential circumstances in Australia, incentive to stay in Australia or return home, whether they are using the student visa program to maintain ongoing residence in Australia, the value of the courses as stated compared to their career goals, their immigration history and any other relevant matter.

8. It is not intended as a checklist but as a guide for decision makers in considering whether an applicant on the whole meets the genuine temporary entry requirements.  The role of the tribunal is to take a fresh look at the application and to consider the applicant’s circumstances against those issues in Direction number 69 and to be satisfied the applicant is a genuine student who genuinely intends to stay in Australia temporarily.

9. The applicant was sent an invitation to come to today’s hearing on 11 October 2019.  That invitation specifically refers to Direction number 69 and the tribunal asked the applicant to provide a range of information including a statement addressing the issues of whether he is a genuine temporary entrant.  A copy of Direction number 69 accompanied the invitation sent to the applicant.

10. In response the applicant provided a number of documents to the tribunal prior to today’s hearing.  That included evidence of blood donations in Australia and in India, his home country, confirmation of enrolment in a Certificate III in Light Vehicle Mechanical Technology which was completed in June 2016, confirmation of enrolment in a certificate IV in Automotive Mechanical Diagnosis which commenced June 2019 and will end on 6 November 2019 and a Diploma of Automotive Technology which will commence on 23 November 2019 and will end on 8 August 2020.  The applicant also provided a genuine temporary entrant statement dated 25 September 2019, a complete Section 359(2) questionnaire and documents from Acumen Education confirming his completion of the Certificate III in Light Vehicle Mechanical Technology course Statement of Attainment showing that he passed all the subjects of that course and a course completion letter from Acumen Education as well.

11. At today’s hearing the applicant responded to a range of questions that went to the issues as referred to in Direction number 69.  The applicant told the tribunal that he had previously completed an apprenticeship as a machine operator where he worked with car parts which were manufactured at the business.  He undertook this apprenticeship for one year and completed it in 2015.  He then went on to start a small business in his home country making and selling small car parts.  He confirmed that he came to Australia on a visitor visa in January 2018 and in June 2018 he enrolled in the Certificate III in Light Mechanical Technology course.

12. The applicant said that he wants to gain practical knowledge and experience in Australia before returning home.  When discussing what the applicant meant by this it is apparent that the applicant was referring to practical knowledge and experience that he will gain through the completion of the Certificate IV and the Diploma of Automotive Technology.  The applicant stated that he is not working in Australia and is supported by his older brother. 

13. He said that when he returns to his home country he wants to expand the business that he started before coming to Australia and he wants to help build cheaper and safer cars.  In Australia the applicant lives with his brother and his wife.  His mother and father are both in India but he is in regular contact by phone with them.

14. In submissions his representative, Mr Yao, explained that his brother’s circumstances were different to that of the applicant in that while the applicant is unmarried and there is an expectation that he would look after his parents, the applicant’s brother married for love rather than the arranged marriage situation that his parents expected him to be.  It was submitted that his brother’s circumstances are different to that of the applicant and the applicant has the intention of returning home to India.

15. The tribunal considers that the applicant has sound reasons for wanting to undertake the study that he is now undertaking in Australia and that the courses will benefit him in his future employment when he returns to India.

16. In the questionnaire it was stated that the Australian education system is much more advanced compared to in his home country in the automotive field.  He said that international qualifications are a very good opportunity to start businesses and doing a job in a separate company in his home country.

17. The tribunal accepts that there is a difference in the level of education provided in Australia and in India. 

18. In terms of the applicant’s personal ties to his home country, the applicant stated that he is a blood donor in India and provides food and distribution for poor people in his home country.  In terms of his ties to Australia, that extends to his brother and his wife.  He said that he is a regular blood donor at the Red Cross in Werribee.  He also prepares food and serves food to the homeless people in Flinders Street Station.

19. The applicant’s personal ties to his home country, although limited to his father and mother, the tribunal accepts that he is in regular contact with them and he has not returned to his home country as he only arrived in the country in early 2018.  Since then he has commenced his studies.  The tribunal also accepts that there are no military service commitments or political or civil unrest in the applicant’s home country.

20. In terms of the applicant’s potential circumstances in Australia, although the applicant does have some family ties in Australia, the tribunal is not persuaded that these are such that they represent a strong incentive for him to remain at this stage.  The tribunal gives the applicant the benefit of the doubt in relation to his intentions to return to his home country, particularly given the length of time that he has been in Australia, which is relatively short and the connection between his previous work history, the courses that he is studying in Australia and his intentions upon his return to India.

21. Accordingly the tribunal does not believe at this stage that the applicant is using the student visa program to circumvent the intentions of the migration program, nor that the applicant is using the student visa to maintain ongoing residence in Australia.

22. In relation to the value of the courses that the applicant is intending on studying, they are consistent with the level of education and work experience he has achieved previously in India, they will assist him in proving his business in India in the sale and manufacturing of car parts.

23. There is no evidence that the applicant’s immigration history should prevent him from being granted a student visa.

24. Having considered the applicant’s circumstances as a whole including the issues in Direction number 69 I am satisfied the applicant is a genuine student who intends to stay temporarily in Australia; therefore I find the applicant does meet Clause 500.212.  It is therefore the decision of this tribunal to remit the applicant for the visa to the Minister for reconsideration with the direction that the applicant meets the criteria in Clause 500.212 of Schedule 2 to the regulations for a subclass 500 Student Visa.

    DECISION

25. It is therefore the decision of this tribunal to remit the applicant for the visa to the Minister for reconsideration with the direction that the applicant meets the criteria in Clause 500.212 of Schedule 2 to the regulations for a subclass 500 Student Visa.

    Elizabeth Tueno
    Member