Singh (Migration)

Singh (Migration) [2019] AATA 3531 (20 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Navrinder Singh
CASE NUMBER:  1900438
DIBP REFERENCE(S):  BCC2016/1130247
MEMBER:Mark O'Loughlin
DATE:20 August 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 20 August 2019 at 9:09am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – genuine temporary entrant – reasons for undertaking study in Australia – income disparity – substantial ties to Australia – value of course – enquiries of potential employers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 March 2016. The delegate decided to refuse to grant the visa on 18 December 2018. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intends a temporary stay in Australia as a student.
The applicant appeared before the Tribunal on 8 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rajvir Singh.The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant gave evidence that he came to Australia in January 2012 as a dependant on his then wife’s student visa.
He said, and the Tribunal accepts, that the marriage failed in 2015 and they divorced in 2016.
He said that he applied for a student visa when his dependant visa was about to expire. He said that he became depressed at the prospect of returning to India without any skills and decided to undertake study for himself.
In relation to his claim that he had become depressed he said that he knows that depression is a medical condition but that he did not seek medical assistance or tell his doctor about it.
The Tribunal asked him if he meant that he had become sad rather than actually depressed but he insisted that he was depressed. He said that he chose not to seek any assistance with this condition although he did have a doctor at the time, a Dr Virgil. He said that he was reluctant to raise the condition with his doctor.
The applicant said that the symptoms of his depression were that he would sit quietly and think that he and his ex-wife would have finished the study and even if they had had to go back to India he would have some sort of skill and she would have a qualification and they could find some sort of work.
The Tribunal noted that he had been in Australia for about 4 years before he applied to study and asked why that was if he wanted to return to India with a qualification. The applicant said that he had spent that time working on his relationship rather than getting into any other problem.
He said that during this time he worked as a cleaner.
The applicant said that he started by taking some English courses. He had to do this because his English was not good enough for study. He wanted to study Business but was told he had to do an ELICOS course for 20 weeks before he could do that.
By way of educational background he had studied to year 12 in India and in the 6 or 7 years before coming to Australia had worked as a labourer in a company that dealt with refrigerators.
He also advised that his family in India have a farm and that his father and cousin run it at the moment but that he expects to acquire it in due course. He said that the physical work on the farm can be done by his cousin and his father is capable of doing the administration so there is no hurry for him to take it on.
He said that it is his preference to try to find another career and that he could contribute to the family income in addition to the profit from the farm.
He said he does not know how much money his family makes from the farm and that they have not needed to support him since he has been here.
He said that he had decided to try to get qualifications to work in a restaurant as a chef. He said that his home is close to some big cities and that there are bigger restaurants there where he may be able to work.
He believes that he might earn about 32,000 to 35,000 rupees per month which he said is about equal to $800.00 to $900.00 Australian.
He said he would have to contribute some of that money to his family but could keep the rest for himself.
He also said that he recently got engaged to a woman that his parents chose for him. She is a teacher and is working in India. She does not want to come to Australia. He said that they have not set a date for the wedding yet but that when his course finishes in the middle of 2021 or 2022 they will do so.
In relation to work while in Australia, the applicant told the Tribunal that he works as a cleaner for about 14 or 15 hours per week and that he doesn’t do more because he has study.
He said that he works for a contractor as an employee. He told the Tribunal that he is not sure if tax is taken out of his pay. He said that he has worked for the same person since 2016 and that he gets about $1.600.00 to $1,700.00 per month.
He lives with his cousin and his cousin’s wife and 2 children who are aged 5 and 1.
He lives in a spare room and does not generally pay rent although he sometimes buys groceries or contributes some money to expenses. He said that he does not send money home and that he generally has access to his cousin’s car if he needs it.
In relation to study the applicant said that when he first decided to apply to study in 2016 he was interested in improving his English and acquiring a skill that he could take home to India and use to get work there. He decided to study business.
He said that he did some English courses but did not study his first choice being Business because he would have had to do some further study in English, which would have been a 20 week course.
He said that he did cookery instead because he could get into that with a lower level of English. When asked if his motivation was to stay in Australia rather than to do any particular course he said that he did not want to go back to India without a skill.
He said that he intends to finish his certificate 3 then do the certificate 4 and then 5 which will take him to July or August of 2022.
The Tribunal had regard to the following documentation provided by the applicant;
a.Visa application dated 18 March 2016;
b.Confirmation of Enrolment (CoE) dated 15/03/2016 for Diploma of Business at Ironwood Career and Training to start on 3/07/2017 and finish on 29/06/2018;
c.CoE dated 15/03/2016 for Cert lll in Spoken and Written English, Ironwood Career and Training, to start on 10/11/2016 and finish on 10/05/2017;
d.CoE dated 15/03/2016 for Cert ll in Spoken and Written English, Ironwood Career and Training to start on 09/05/2016 and finish on 04/11/2016;
e.CoE dated 10/08/2018 for Diploma of Hospitality and Management at Salford College to start on 2/11/2020 and finish on 30/05/2021;
f.CoE dated 10/08/2018 for Certificate IV in Commercial Cookery at Salford College to start on 30/03/2020 and finish on 27/09/2020;
g.CoE dated 10/08/2018 for Certificate lll in Commercial Cookery at Salford College to start on 4/02/2019 and finish on 23/02/2020.
h.CoE dated 10/08/2018 for English Preparation for Academic Studies at Salford College to start on 27/08/2018 and finish on 13/01/2019.
i.Notice of assessment from Australian Tax Office for Rajvir Singh for financial year ended 30 June 2018;
j.ANZ Access Advantage Statement Ms SK Gill and Mr Rajvir Singh10 August to 11 October 2018;
k.ANZ Access Advantage Statement Mr N Singh 10 July to 10 September 2018;
l.Submissions made on the applicant’s behalf dated 4 November 2018;
m.Financial Support Statement of Rajvir Singh dated 5 November 2018 and directed to the Department of Home Affairs and supporting tax information; and
n.Decision record Department of Home Affairs 18 December 2018;
The Tribunal had regard to;
a.Movement Records dated 30/05/2019: and
b.PRISMS records dated 3/06/2019.
But did not rely on them as the matters that they covered were the subject of oral evidence from the applicant and the Tribunal relied on the applicant’s oral evidence rather than the above documents.
The Tribunal further had regard to submissions made by the applicant’s representative dated 2 July 2019 together with annexures and further submissions dated 8 July 2019 and provided shortly after the hearing.
The Tribunal did not have regard to any other evidence save for the oral evidence given at the hearing of the matter.
As regards the submissions made by the applicant’s representative, the Tribunal notes that the applicant is said to have suffered life difficulties which impacted on his personal wellbeing and on his life in general. The representative said that the applicant had little knowledge of English when he came.
The representative submitted that the applicant’s wife left him, destroying his dreams and plans. The applicant is described as having hoped that his wife would return to him and they would continue their life together.
The representative submitted that the applicant and his cousin decided that he should seek to study in Australia so that he would not return to India “empty-handed and defeated”.
He said that the applicant has completed his studies in English but was not successful in attaining the standard needed for the Business Diploma that he wanted to do.
He decided to pursue training in cooking and hospitality as he had always enjoyed cooking.
The submissions say that the choice made a lot of sense and that his interest “would develop into a passion and then into an overall vocational life and success.”
On that basis he proposes to do a certificate 3 and 4 and a Diploma of Hospitality Management.
The representative submits that the personal problems and then the issues with his applications for a student visa were serious disruptions in his life which caused the applicant a considerable amount of hardship.
Although the hardship is not identified in the submissions of 2 July 2019, they say that the applicant “…managed to get back on his feet, with the help of his cousin… who welcomed him in his own family home in Adelaide and offered their emotional support.”
The submissions state that the applicant completed an English course and was then able to tell his family in India that he was on the right track and that his personal problems were behind him.
The submissions say at paragraph 25 “He has made some enquiries in his home locality and local restaurant owners and found that he would be highly appreciated with his skills when he returns.” When asked about such enquiries the applicant gave evidence that his wife had told him that with a skill he can get a good job. It is not suggested that his wife is a restaurant owner and the applicant’s evidence was not that he would be working for her.
The Tribunal is not satisfied that the applicant has made enquiries of potential employers in India about the value of his qualifications in Cookery.
In further written submissions dated 8 July 2019, the applicant said that he had engaged in studies without major breaks between courses and that it was important that he improve his English before commencing his other study. The thrust of those submissions is that the applicant has not been unnecessarily slow in proceeding to skills study although perhaps his Englsh studies have taken longer than others may have to reach an acceptable level.
In relation to his stay in Australia and the support that his cousin gives him the applicant said that he has worked for his cousin since 2016 and that he is an employee. He said that he works about 14 or 15 hours per week and that he makes about $1.600.00 to $1.700.00 per month, before tax.
The applicant gave evidence that his cousin provides a home, rent free and access to a car when he needs one. He said that sometimes he contributes to the cost of groceries although he is not expected to do so.
The applicant’s cousin, Rajvir Singh gave evidence.
He said that the applicant had worked for him for the last 2 or 3 years. He said that he is aware that the applicant is restricted to 20 hours per week and he only does 17 or 18 hours. This is slightly more than the applicant said but the difference is not significant.
He said that he pays the applicant about $21.00 per hour.
Mr. Rajvir Singh further gave evidence that the applicant is living with the family in rented accommodation at the moment while Mr Rajvir Singh has a new home built. His evidence was that there will be room in the new house for the applicant to continue to live with the family.
He confirmed that the applicant sometimes gets groceries and said that he also gets fuel for the car sometimes.
Mr Singh also gave evidence that he believes that the applicant’s mother was suffering from high blood pressure and that he believed that the applicant’s trouble here has had an effect on that.
The Tribunal asked the applicant about that and he said that he does believe that his problems have contributed to his mother’s ill health. No other evidence was provided of that.
Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.
The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that 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) …
In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act.
The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The relevant text of Direction No 53 setting out the specific factors, and the Tribunal’s consideration thereof (in bold text) are as follow:
The applicant’s circumstances in their home country
9. In considering the applicant’s circumstances in their home country, decision makers must have regard to the following factors:
a.Whether the applicant has sound reasons for not undertaking the study in the home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives as established by the applicant. The applicant said that he came to Australia to support his ex-wife who was a student. He said that after his marriage failed he decided to study here. He gave evidence that he had not made any enquiries into the availability of cookery courses in India. He said he did not know if any are available and did not check because he was in Australia when he had the idea to study cookery. He said that he wanted to study Cookery in Australia rather than return to India with no qualification. The Tribunal is not satisfied that the applicant intended to acquire a qualification when he came to Australia. The Tribunal is not satisfied that the applicant has a sound reason for not undertaking the study in his home country.
b.The extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether they would serve as a significant incentive to return to their home country. The applicant gave evidence that his parents and sister live in India and that they own land which provides them with an income. He said that he expects to be able to get work in India if he gets cookery qualifications although he does not appear to have done any or adequate research into the value of the qualifications to potential employers in India. The Tribunal finds that the applicant’s family represent some incentive to return. The applicant’s proposed marriage is said to be flexible as to timing although the applicant said that his wife to be is not interested in coming to Australia so that represents some incentive to return. The Tribunal is satisfied that the applicant’s ties to his home country serve as some incentive to return but does not find that this incentive is significant, particularly in view of the extended time that the applicant has been living here and the proposal to stay a further period of about 2 years.
c.Economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia. The applicant is supported in Australia by his cousin who provides him with free lodgings, a car and work. The applicant earns a little under $400.00 per week. He gave evidence that he believes that he would be able to earn about 32,000 to 35,000 Rupees per month which he said was about the same as $800.00 to $900.00 per month. He also said that he would need to contribute some of that to the family but the rest would be his own. The Tribunal finds that the applicant has more support in Australia than he would have in India as he does not need to make any formal contribution to his cousin’s household and he earns more money. The Tribunal is not satisfied that the applicant has made sufficient enquiry of potential employers in India to have assesed his likely employability or earnings properly. The Tribunal finds that the applicant’s economic circumstances would present as a significant incentive for him not to return to his home country.
d.Military service commitments that would present as a significant incentive for the applicant not to return to their home country. There is no evidence of any military service commitments that would serve as incentive for him not to return to his home country.
e.Political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa. There is no suggestion of relevant political or social unrest in the applicant’s home country. This consideration does not provide a likely motivation for the application for a Student visa.
10. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country. The Tribunal is satisfied that the applicant’s circumstances in India are likely to be relatively good with a family home and at minimum some income from the family farm.
11. In considering the applicant’s potential circumstances in Australia, decision makers must have regard to the following factors:
a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties. The applicant has a strong bond with his cousin and family in Australia and his cousin gave evidence of the applicant having some ties with the local temple, where the applicant attends to help at the volunteer kitchen. The applicant enjoys a well supported life in Australia because of his cousin’s help.
b.Evidence that the Student visa is being used to circumvent the intentions of the migration program. The applicant came to Australia in January 2012 as dependent on his ex wife who had a student visa. The applicant gave evidence that he applied for a visa to study when his dependent visa was finishing. That was in March 2016. The applicant has managed to complete some English courses in the time since then but did not start his substantive course until April 2019, about 3 years later. He said that that was because of a combination of depression and the need to improve his English. The Tribunal does not accept that he suffered from depression.
c.Whether the Student visa is being used to maintain ongoing residence. The Tribunal is not satisfied that the Student visa is not being used to maintain ongoing residence in view of its findings that the applicant has not demonstrated sound reasons for not studying in India, that his circumstances in Australia appear to compare favourably to his potential circumstances in India, that he has not satisfied the Tribunal that he was prevented from studying by depression, and that the Applicant has substantial ties to Australia.
d.Whether the primary and secondary applicant(s) have entered into a relationship of concern for Student visa purposes. Where it has been determined that an applicant and dependant have contrived their relationship for Student visa purposes, the decision maker can find that both applicants do not satisfy the genuine temporary entrant criterion. This is not a relevant consideration.
e.The applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant could be expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements. The Tribunal finds that the applicant has a good knowledge of living in Australia. The applicant gave evidence of some familiarity with the contents of the course and in particular that it covered both Indian and Western cookery.
Value of the course to the applicant’s future
12. Decision makers must have regard to the following factors when considering the value of the course to the applicant’s future:
a.Whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways. The Tribunal is not satisfied that the applicant has done any real research into the likely value of studies into Commercial Cookery to his future. He gave evidence that the only enquiries he made were to ask his wife. He was not sure of his likely earnings and, although he expressed himself as confident that he could find work due to the number of restaurants near his home, he had not made any actual enquiries of potential employers.
b.Relevance of the course to the student’s past or proposed future employment either in their home country or a third country. The applicant’s past employment was as a labourer and his studies are not relevant to that work. The Tribunal is not satisfied that the applicant has made relevant enquiries into the likelihood of employment using his studies in Cookery.
c.Remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study. Although the applicant gave no basis for his belief, he said that he could earn the equivalent of $800.00 to $900.00 (AUD) per month. There is no evidence as to the potential earnings the applicant could receive in Australia using his qualifications.
The applicant's immigration history
13. An applicant’s immigration history refers both to their visa and travel history.
14. In considering the applicant’s immigration history, decision makers must have regard to the following factors:
a.Previous visa applications for Australia or other countries, including:
i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused. The applicant has previously held Australian tourist visas and student visas. This is his first visa refusal. The Tribunal is not aware of any outstanding applications.
ii.if the applicant has previously applied for visas to other countries, whether they were refused a visa and the circumstances that led to visa refusal. There is no evidence that the applicant has been refused a visa to another country.
b.Previous travels to Australia or other countries, including:
i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control; There is no evidence that the applicant has failed to comply with Australian visa conditions in the past.
ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances. There is no evidence that the applicant has held a visa that was cancelled or considered for cancellation.
iii.the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification.
iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance. There is no evidence that the applicant has not complied with the migration laws of any country other than Australia.
If the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant
15. If the primary or secondary applicant for a subclass 570, 571, 572, 573, 574, 575, or 576 visa is a minor, decision makers must have regard to the intentions of a parent, legal guardian or spouse of the applicant. This is not relevant to this application.
Any other relevant matters
16. Decision makers must also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant. When asked if there were any other relevant considerations, the applicant said that he has nothing except if he gets proper qualifications he can get out of the bad situation he was in. When asked what that was, he said his divorce. There was no other relevant information available to the Tribunal

The Tribunal observes that the applicant claims to have decided to pursue study in about March 2016. He said that he did not start immediately due to depression and to the need to learn English. The Tribunal does not accept that the applicant suffered from depression and does not accept his submission that he has studied continuously. The Tribunal is not satisfied that the applicant is motivated to study by the prospect of finding work as a cook and improving his future.
On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).
The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Mark O'Loughlin
Member

[2019] AATA 3531

20 August 2019

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction