Singh (Migration)

[2019] AATA 2993

Singh (Migration) [2019] AATA 2993 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harphool Singh
Mrs Navpreet Kaur Batth
Miss Jaskirat Kaur Mangat

CASE NUMBER:  1805185

DIBP REFERENCE(S):  BCC2017/4208143

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 June 2019 at 11:22 am (VIC time)

DATE OF WRITTEN RECORD:                25 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 25 June 2019 at 1:21pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– genuine temporary entrant criterion not met– in Australia for over 10 years –immigration history –  using student visa to maintain ongoing residence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 February 2018 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (the Act).

2. At the hearing on 6 June 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. This is an oral statement of decision and reasons of the Administrative Appeals Tribunal, in case number 1805185, in relation to an application for review brought by Harphool Singh, being the primary applicant and two secondary applicants, Navpreet Kaur Batth, the secondary applicant who is the wife of the primary applicant and Jaskirat Kaur Mangat, who is the stepdaughter of the primary applicant and the biological child of the other secondary applicant. The secondary applicants, I should indicate, seek to have their visas granted on the basis of being members of the family unit of the primary applicant, Mr Singh.

4. The applicants are citizens of India. They seek review of a decision made by a delegate of the Minister for Immigration and Border Protection on the 12th of February, refusing to grant them student visas. They applied for their visas on 10 November 2017. The applicable Regulations classify this type of visa as a Student (Temporary) (Class TU) (subclass 500) visa. Such visas are issued under the general power to issue visas conferred on the Minister or his delegate, by section 65 of the Migration Act 1658. If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time, on a temporary basis. An applicant’s family members or guardian may also join in the application, so that they too are issued visas permitting them to stay in Australia for the duration of the primary applicant’s studies.

5. In this case, there are three applicants. The primary applicant, as mentioned above, is Harphool Singh. The secondary applicants are Navpreet Batth and Jaskirat Mangat, who claim to be members of the primary applicant’s family unit. It is the primary applicant, Mr Singh, who must satisfy the primary criteria as detailed in the Regulations, relating to the grant of a student visa.  The outcome of the review for all of the applicants turns on whether the primary applicant meets the primary criteria under the Regulations. The reasons for the tribunal’s decision relate mainly to the primary applicant. References that I make to the applicant throughout these reasons may therefore be taken to be a reference to the primary applicant, Mr Singh only and not the secondary applicants, unless I make specific mention of the secondary applicants.

6. In this case, the student visas were refused because the delegate found that the primary applicant did not satisfy the requirements of clause 500.212 of schedule 2 of the Regulations. The delegate did not consider him to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision record was provided to the tribunal with the review application when the applicants lodged their application for review with the tribunal.

7. Only the primary applicant appeared before the tribunal today to give evidence and to present arguments. The tribunal hearing was conducted with the assistance of an interpreter of the Punjabi and English languages. 

8. The criteria for a subclass 500 student visa are set out in Part 500 of schedule 2 of the Regulations. The primary criteria in clauses 500.211 to 500.218 must be satisfied by the main applicant. Whether an applicant satisfies the criteria is to be determined at the time of the tribunal’s decision being made. Any student visa application must be founded on evidence of the applicant being currently enrolled in one or more registered courses of study. An applicant must propose one or more courses run by a registered course provider and declare an intention to complete these courses in the event of a student visa being granted.

9. In this case, the applicant advanced his application before the tribunal on the basis that he wishes to study for a Diploma of Leadership and Management at the Vocational Training Institute, based in Melbourne. In support of that proposition, he produced a confirmation of enrolment, being a document generated by the Department of Education and Training’s Provider Registration and International Student Management System, otherwise known as PRISMS. 

10. That document that was produced to the tribunal was created on 23 April 2019. It indicates that the applicant enrolled for that course on that date, 23 April 2019. According to the document, on the face of it, it indicates the course will start on 24 June 2019 and finish on 23 June 2020. The total tuition fee payable for the course is $6000. The applicant asserted that he has already paid the initial instalment required, of $1000. While he was not able to produce any evidence of that, I accept his assertion for the purposes of the hearing today.

11. The tribunal ultimately is satisfied on the face of this document, which appears to be in order, that he is currently enrolled in a registered course of study and therefore, he meets the requirements contained in clause 500.211 of schedule 2 of the Regulations. However, that is not the end of the enquiry. The critical issue in this case is whether the applicant satisfies the primary criteria contained in clause 500.212 of the Regulations. That clause states that for a student visa application to be successful, the applicant must be a genuine applicant for entry and stay as a student in Australia.

12. The word, “Genuine”, may be taken to mean, authentic, real or true, according to its ordinary and natural meaning. The question really for the tribunal today is: Is the applicant a genuine applicant when he says that he genuinely wants to study for a Diploma of Leadership and Management?

13. The Regulations specify two constituent elements of a genuine student visa applicant. First, a genuine applicant is one who intends genuinely to stay in Australia temporarily. The applicant must demonstrate an intention to stay in Australia for a limited time only, not permanently. That intention must be unqualified. This requirement reflects the temporary nature of being a student. 

14. Secondly, a genuine applicant is one who intends to comply with any conditions to which the visa may be subject. There are several conditions that attach to all student visas, the most important of these oblige the visa holder to remain enrolled in a course of study and to make satisfactory progress in their studies. A demonstrated intention to comply with these conditions reflects a genuine intention to be a genuine student.

15. The Regulations direct the tribunal to consider the applicant’s intentions, as they are at the time the tribunal makes its decision. The tribunal must consider an applicant’s declared intentions, as well as other more objective evidence that may either support or cast doubt on their claims. The Regulations state consideration must be given to the applicant’s objective circumstances, their immigration history and their record of complying with conditions of any previous visas issued. 

16. The tribunal must also have regard to Direction No. 69 that was issued by the Minister on 1 July 2016.  Direction 69 elaborates upon the regulatory criteria. The specific considerations referred to in both the Regulations and in Direction 69 are not exhaustive.  The tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student. 

17. Turning to the evidence that is before the tribunal, the applicant stated that his reasons for studying the proposed course, being the Diploma of Leadership and Management, is that it builds upon his previous qualifications. He stated that he had already studied certificates III and IV in automotive courses and that he ultimately wants to run a workshop and he considers that leadership is very important for the purposes of doing that. 

18. The tribunal enquired of the applicant what he intends to do once he has actually finished the diploma course, which if the visa is granted, would be in 2020. The tribunal considers, in this regard, that his evidence was somewhat vague and uncertain. He stated that he definitely wants to run his own workshop and then proceeded to say possibly or maybe in India, possibly Canada or ‘somewhere’. The tribunal asked specifically whether he intends to leave Australia once he has completed this course.  He stated that he was not sure if he was going to leave Australia.  He stated that if he finds any good opportunity, he will stay. The tribunal asked whether he would prefer to stay in Australia on a long-term basis. He then stated, which appears to be inconsistent with his previous answer, ‘not really’, because his family is in India.

19. In light of this evidence, the tribunal is not satisfied that he has demonstrated a clear intention to depart Australia upon completion of his course and that he has not demonstrated to the tribunal’s satisfaction an unqualified intention to remain here temporarily. This is of a particular concern in the present case, because the tribunal notes that the applicant has now been here, in Australia, on a long-term basis for 10 years, a decade. That represents approximately one third of his entire life and virtually all, or certainly most of, his adult life. By any objective assessment, it is clear, and also the applicant accepted, that he likes living in Australia and so, of course, the tribunal has grave doubts when he asserts that he will depart Australia following the completion of the diploma course. 

20. Nevertheless, that is not the end of the enquiry and so consideration must be given to other, more objective evidence that might support or undermine any declared intentions to depart Australia once he has finished this course. In that regard, I now turn to consider those other factors. 

21. The applicant must demonstrate to the tribunal’s satisfaction that he intends to comply with any conditions to which the visa may be subject. Several conditions attach to student visas, the most important of these oblige them to remain enrolled in a registered course of study and make satisfactory progress, to attend classes and in the event of a decision by him to change his enrolment, avoid downgrading. 

22. To understand whether those intentions are genuine and whether he does actually hold that intention, it is pertinent to refer to his history of studying in Australia since he arrived. He first arrived in Australia in July 2009 on a student visa, which was granted on the basis that he would study, originally for a Certificate III in Automotive Mechanical Technology and then a Diploma in Management. 

23. The applicant has produced to the tribunal, in evidence, copies of all his qualifications that he has obtained since he has resided here. I will refer to those, for the purposes of the reasons for the tribunal’s decision. 

24. He completed a Certificate III in Automotive Mechanical Technology that was issued on 24 October 2010 and conducted by the Ashmark Institute of Australia. He was issued a Diploma of Management on 29 July 2011. That was by the Ashmark Institute of Australia. Ashmark also conducted a course, which he completed successfully, being a Diploma of Automotive Management, with that diploma being issued on 29 October 2012. He then completed and was issued a Certificate IV in Automotive Technology from the Australian Industrial Systems Institute, dated 18 June 2013. He then successfully completed a Certificate III in Automotive Electrical Technology, also from the Australian Industrial Systems Institute, issued on 16 April 2015 and on the same date, issued by the same course provider, there was a Diploma of Automotive Technology and then, the last qualification which he has produced, having successfully completed, is the Advanced Diploma of Management. That was successfully completed and issued on 8 December 2015.

25. The tribunal enquired of the applicant whether that is it, in terms of the educational qualifications he had attained since being in Australia and he confirmed that is indeed the case. Based on that evidence, he has remained in Australia, to date, since 8 December 2015, having not undertaken any further study. Yet, here he is today, insisting that he genuinely intends to stay in Australia to study and it appears he has done nothing by way of study for some time and now proposes that he wants to study again, for the purposes of a Diploma of Leadership and Management.

26. The tribunal is satisfied that when he applies himself, he is capable of achieving what he sets out to do, by way of academic pursuits, given all of those qualifications that I have referred to. However, one of the concerns that the tribunal has today, is that the course he proposes is a Diploma of Leadership and Management, bearing a striking resemblance in name, to the Advanced Diploma of Management that he has already obtained, with the diploma that he now proposes to do, being at a lower level, according to the Australian Qualifications Framework. 

27. When queried about this, the applicant stated that there is a distinction between the Advanced Diploma of Management and what he proposes to do, being the Diploma of Leadership and Management. His attempt to explain that distinction was vague, and on the whole, completely unsatisfactory and the tribunal does not consider that this Diploma of Leadership and Management course will add anything by way of value to what he has already obtained, in terms of Australian qualifications. That said, if indeed he does get this visa and proceed to do this course, the tribunal is satisfied that he probably has the ability and the intention to actually complete it.

28. But of course, I now turn to the specific consideration of the value of the course to the applicant’s future. On the whole, the tribunal considers that there is little to no value in this course, given the applicant’s history. If there was so much value to be found in getting these leadership skills from the Diploma of Leadership and Management, it is the tribunal’s view that he would have committed himself to studying this much earlier than he has. It appears not to be a coincidence that he enrolled in this course less than two months before this particular hearing, when the applicant obviously realised that his application for visa was coming up and he needed to be enrolled in something in order to have any prospects of success in advancing his student visa application today.

29. The tribunal is of the view that the present enrolment that he has proposed is a disingenuous one and that he does not personally see any particular value in it, given his previous qualifications.

30. In terms of the applicant’s circumstances in his home country, he said that he has, or at least indicates, that all of his family is there and so does, it would seem, have an incentive to return. He says that he has returned to India at least once a year, but the reality is, he has remained in Australia for 10 years. In that regard, something must be said about his immigration history. 

31. He was granted his initial visa on 18 May 2009. That was a temporary student visa. When he applied for that visa, he declared an intention that he intended to remain in Australia temporarily and that after that particular two-year visa, he would depart. That intention obviously was not carried through, because he then applied for another temporary student visa and then he applied for another temporary visa and then another and another. In total, he has applied for five temporary visas in Australia, which he has been granted. On each occasion, he declared to the Australian immigration authorities that he intended to depart after the visa period expired. He now comes before this tribunal for the sixth time and declares that he intends to remain in Australia temporarily. In light of the immigration history, the tribunal sees no credibility in his assertions to that effect at all. Objectively, it is clear that the applicant prefers to remain in Australia on a longer-term basis.

32. Having regard to other circumstances in his country do not allay these particular concerns.  He does not appear to have any significant assets in India, which might lure him back to his home country, because all of the assets are in the name of his father, being family land. His wife is here, as is his stepdaughter, and the tribunal is of the view that this particular visa application is being advanced on the basis that he is trying to maintain ongoing residence, contrary to the intentions of the student visa program.

33. The tribunal notes the economic disparity between India and Australia. Australia is ranked number three on the United Nations Human Development Index, whereas India is ranked 130. The applicant, in evidence, has admitted that he has been working since his student visa was refused, rather than taking up the opportunity to study. If indeed he was a genuine student, he would have tried to demonstrate to the tribunal today, by showing that he had been enrolled and continuing to study for the last 18 months or so. That has not happened.  Instead, he has been taking the benefits of the Australia economy and working and yielding the economic benefits that such work in Australia gives to somebody in the applicant’s situation, rather than in his home country.

34. In all of the circumstances, and having regard to other factors, such as the fact that there does not appear to be any civil or political issues in India that operate to deter him from returning or compulsory military service, the tribunal is ultimately of the view that the applicant is not a genuine applicant for entry and stay temporarily as a student in Australia.

35. The time now is 11.44 am in case number 1805185.

36. The tribunal affirms the decision not to grant the applicants a Student (Temporary) (Class TU) (subclass 500) visas. 

    DECISION

37. The Tribunal affirms the decisions under review.

    Dr Jason Harkess
    Member