Singh (Migration)

[2019] AATA 2593

Singh (Migration) [2019] AATA 2593 (3 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurwinder Singh

CASE NUMBER:  1727045

DIBP REFERENCE(S):  BCC2017/3108798

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 May 2019 at 11:20 am (VIC time)

DATE OF WRITTEN RECORD:                20 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the Applicant meets the criteria contained in clause 500.212 of Schedule 2 of the Regulations.

Statement made on 20 May 2019 at 4:27pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Bachelor of Business – credible business plan – Indian restaurant – open job offer in home country – reasons for studying in Australia – strong family ties in home country – study history – satisfactory academic progress – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 20 October 2017 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 3 May 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. The Applicant is a citizen of India who seeks review of a decision made by a delegate of the Minister on 20 October 2017 refusing to grant him a student visa under section 65 of the Act.  The Applicant applied for the visa on 28 August 2017. The delegate in this case refused to grant him a visa because the delegate considered that he was not a genuine Applicant for the purposes of clause 500.212 of schedule 2 of the Regulations.

4. The Applicant attended the Tribunal today to give evidence and present arguments. He was assisted in relation to the hearing by his registered migration agent, Ms Carina Ford. The Tribunal was conducted with the assistance of an interpreter of the Punjabi and English languages.

5. 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 218 must be satisfied by the Applicant. Whether the Applicant satisfies the criteria is to be determined at the time the Tribunal's decision is made.

6. The issue in this case is whether the primary Applicant satisfies the primary criteria contained in clause 500.212 of the Regulations. Clause 500.212 is otherwise known as the genuine temporary entrant criterion. It 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. The word genuine is not explicitly defined in the Regulations, however genuine may be taken to mean real, true, and not phoney or fake.

7. Clause 500.212 directs attention to two specific considerations. First, it states that the Applicant will be a genuine Applicant because he or she intends genuinely to stay in Australia temporarily. That requirement suggests the student visa Applicant must intend to stay in Australia for a limited time only, not permanently. It is a requirement that clearly reflects the temporary nature of being a student. A person chooses to study (indistinct) is to obtain specific skills and one or more qualifications that will specifically allow the person to obtain a better paying job.

8. A genuine student is therefore a person who studies over a discrete limited period. Once they have had a reasonable amount of time to successfully complete their studies allowing for unexpected contingencies, the genuine student visa Applicant is expected to depart Australia and return to their home country where they will put their newly acquired skills to economically productive use.

9. Secondly, clause 500.212(b) states an Applicant will be a genuine Applicant because he or she intends to comply with conditions attaching to the visa. The most important of these conditions advise the student visa holder to remain continuously enrolled in a registered course of study and to make satisfactory progress in their studies for the currency of the visa. Those conditions reflected are the essence of being a student.

10. To be a genuine student visa Applicant you must therefore demonstrate you intend to do the things that students are expected to do, study and successfully complete your course requirements. In considering the application of clauses 500.212(a) and (b) the Regulations advise the Tribunal to have regard to the Applicant's circumstances, their immigration history, their stated intentions and their history of compliance with conditions on previous visa granted.

11. The Tribunal must also have regards to Direction No 69 issued by the Minister for Immigration and Border Protection on 1 July 2016. The direction obliges the Tribunal to consider several factors before reaching a decision on any student visa application. These factors elaborate upon the regulatory criteria that relate to the Applicant's circumstances in their home country, their potential circumstances in Australia, the value of the Applicant's course of study to their future, the Applicant's immigration history and a range of other factors.

12. Finally, I note that specific considerations referred to in both the Regulations and Direction No 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 in Australia. Those are the principles.  I now turn to apply those to the case at hand.

13. The Applicant is bringing forward this application on review for a student visa on the basis that he wants to enrol in and complete a Bachelor of Business. The Applicant stated that he had always wanted to do a higher level degree and wanted to open up his own business once he has completed it – the business being a restaurant, an Indian restaurant, when he returns to his home country.

14. He stated in evidence that he has done research in relation to that particular plan and the Tribunal is ultimately satisfied with the research as articulated. That evidence demonstrated that he is indeed serious about opening a restaurant on his return to India. He also made the observation that he is likely to be employed first as a restaurant manager, which is a sensible thing to do before setting up your own business and not just hoping for the best when you return.

15. The Applicant produced in that regard documentary evidence establishing that he has an open job offer from a Mr Rageesh Kumar who is the owner of a restaurant based in Punjab.  The Tribunal accepts that evidence.

16. Ultimately the Bachelor of Business, the Applicant states, will help him significantly in relation to the running of his business. Initially the Applicant stated very generally how the Bachelor's degree will actually help him but upon pressing and inquiring by the Tribunal he attempted to adapt something that he was learning from one of his courses to indicate how that might be useful in the long term with respect to this business idea that he has when he returns home.  The Tribunal is satisfied with the explanation in that regard that was given by the Applicant.

17. The Applicant upon inquiry by the Tribunal as to why he could not simply open a business, and why he needs to do a Bachelor's degree to open a business, why could he not just open a business without a degree? He also gave a satisfactory answer, as previously indicated, and he also explained why he preferred not to do the current Bachelor's degree he is doing in India rather than in Australia. He referred to his previous experience in completing an undergraduate Bachelor of Arts in Punjab and was not satisfied with his experience. He referred to an outdated curriculum that was used. He also referred to Australia’s international reputation with respect to education.  Again, the Tribunal accepts all of that evidence and the reasons that the Applicant has articulated for wanting to do the Bachelor of Business here.

18. The Applicant stated that he does intend to comply with all visa conditions if indeed he is granted a visa. There were no reservations about that when asked. He also indicated that his current intentions are, if the visa is granted, to go back to India upon completion of the Bachelor of Business in 2020. The Tribunal has no concerns about the credibility of the Applicant's evidence in this regard.

19. The is 26 years old. He indicated that he is currently engaged to be married. His fiancée is also Indian. He indicated that they got engaged on 22 March 2018 and they have planned to marry later this year. To that end he will return to India over the summer vacation break in the November to December period when he will be in India for two months, which coincidesI said, with the summer vacation of college studies.

20. He indicated that he last saw his fiancée on 2019, again in India. He was there from 10 January 2019 and did not get back to Australia until 4 March 2019. He saw her frequently although in accordance with the customs before marriage he did not actually cohabitate with her while he was there.

21. All of this evidence is consistent it would seem with the Applicant having very strong ties to his family back in India and has every incentive to return upon completion of his studies and that is what he says he intends to do and the Tribunal accepts that.

22. The Tribunal has had regard to his immigration history. He originally arrived in Australia on 18 January 2017 on a class TU subclass 573 visa. That was originally valid until 28 August 2017 and granted on the basis of the streamlined visa processing requirements that obliged him to remain enrolled in a course at a higher educational level. It appears that this was a significant consideration in relation to the decision issued by the delegate because he evidently breached that condition by discontinuing the MBA course in which he had originally enrolled.

23. The Applicant stated in evidence that he found it extremely difficult when he started doing that course after he had completed his English studies in the first 18 weeks of his arrival in Australia. And the Tribunal accepts the explanation. It is clear that he has intended to get back on track after completing successfully Certificates III, IV in Commercial Cookery followed by a Diploma in Hospitality and Tourism and Management. And so in that sense the Applicant has consistently studied for the purposes of ultimately obtaining a Bachelor in Business degree.

24. There have been no gaps since he started the Certificate III and so in that sense that history demonstrates that he is indeed a genuine student in the Tribunal's view.  He then commenced the Bachelor of Business degree and the Tribunal has seen the transcript in that regard. He has failed very few units. The Tribunal is satisfied that he continues to progress satisfactorily in relation to his Bachelor’s degree and does not have any concerns about him completing this in 2020.

25. The Tribunal has taken into account the circumstances in his home country, in particular references have already been made to his significant family ties. Also, he has indicated, and the Tribunal accepts, his family land, which he will inevitably inherit as the only child of his parents.

26. The Tribunal has no concerns about military service or potential for political unrest. His fiancée, of course, is waiting for him to be married back in India and so he has very strong ties to his home country.

27. The Tribunal obviously has to take into account that there is significant economic disparity between Australia and India and that may operate on any objective standard as an incentive for him to remain here but he does not have anyone here in terms of family. In that sense it has not had a significant bearing on the outcome of today's hearing.

28. The Tribunal accepts all of the Applicant's assertions in relation to the value that this particular course will have for his future.  And all of the circumstances on balance the Tribunal is satisfied that the Applicant genuinely intends to stay temporarily in Australia as student.

    DECISION

29. The Tribunal remits the application for a student temporary class TU visa for reconsideration with the direction that the Applicant meets the criteria contained in clause 500.212 of schedule 2 of the Regulations.

    Dr Jason Harkess
    Member