Singh (Migration)

[2019] AATA 1320

Singh (Migration) [2019] AATA 1320 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet  Singh

CASE NUMBER:  1720429

HOME AFFAIRS REFERENCE(S):           BCC2017/1787335

MEMBER:Peter Booth

DATE:15 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 April 2019 at 4:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentive to return to home country – disparity in earning capacity – employment history in Australia – personal ties to home country – time already spent in Australia – value of course to applicant’s future – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 19 May 2017. 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.

3. 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).

4.    The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments.

5.    The applicant was assisted in relation to the review by their registered migration agent.

6.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 is a genuine temporary entrant.

8.    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?

9.    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 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.

1. 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.

2. The applicant was initially granted an offshore visa TU (subclass 572) Vocational Education and Training visa on 26 November 2009.  The purpose of the study was to undertake a General English course and a Certificate III in Hospitality (Commercial Cooking).

3. The applicant gave evidence at the hearing regarding his studies to the following effect:

   a.A Certificate III in Hospitality course was started on 5 March 2010 and completed in early 2011;

   b.A General English course was started on 14 December 2009 and completed on 22 January 2010;

   c.A Certificate IV in Hospitality was started on 22 February 2010 and completed on 21 June 2011;

   d.A Diploma of Hospitality was started on 1 August 2011 and completed on 21 April 2012;

   e.An Advanced Diploma of Hospitality was started on 24 July 2017 but not completed.  He said that it was not completed because the course provider wanted an additional $7,000. 

4. The applicant said that he was married in 2013 to a fellow student and obtained a spouse visa on 30 July 2013.  He then obtained a work visa on 4 May 2015 on the basis of his marriage, his wife having a student visa.  On 19 May 2017, he applied for a higher education sector visa.  Between 2015 and 2017 he said that he was working part-time.  He intended to study a Bachelor of Business from 24 July 2017 to 30 June 2020.  It is offered by Stotts Business College and he gave evidence that he had commenced the course.  His reason for commencing this course is to obtain “more skills in management”.  He did not complete it.

5. The applicant has worked at Aangan restaurant in Fitzroy from 2011 to 2012, at Sovereign View restaurant in Ballarat in 2014 for a few months, as an Uber driver from 2015 to 2016 and currently works as a taxi driver and an Aangan restaurant in Shepparton.  He lives in Tarneit and was divorced from his wife in September 2018. 

6. The applicant has relatives in India including his father, mother, brother and sister.  He has no assets in India although his family owns a farm.  He could not estimate the value of the farm.

7. The applicant currently earns about $620 per week after tax from his labours as a cook.  The applicant estimated that he would earn about $600AUD per month as a cook in India. 

8. The applicant said that he intends to study at the Australian Institute of Interpretership to further his English abilities.  This course started on 18 March 2019 and will continue until 22 April 2019.  He also would like to study a Bachelor of Tourism and Hospitality at Academies Australasian Polytechnic (AAP).  This course starts in June 2019 and will continue until 2021.  He produced a Certificate of Enrolment for the AAP course.

9. The applicant filed written submissions dated 21 February 2019 in support of his application for review by the Tribunal.  The submissions were generally consistent with his evidence in the hearing.  The submissions added that he intends to “start a business of my own”, although he did not articulate the type or nature of that business although it appears to be in hospitality or tourism.  Further, it contained general laudatory comments regarding the AAP and the course and that he desired to “pursue my career as a cook” and to obtain a “supervisor/manager role” and “later turn it into a business opportunity to start something of my own”.  The submissions also asserted that he found it “hard to cope with my separation and then divorce” and sought consideration for “my exceptional compassionate circumstances”.

10. The applicant completed several vocational courses in hospitality between early 2010 and mid-2011.  On 19 May 2017 he applied for a student visa (subclass 500) Higher Education Sector.  It is on that basis that he said he intended to study the Bachelor of Business Studies.

11. On 30 July 2013 he became a dependent of his spouse and undertook no study from that time.  From 2011 the applicant has had a series of jobs as a cook and is currently working as a taxi driver. 

12. He has left Australia once for a period of 32 days since he arrived in early 2010.  Whilst he has family in India, he has chosen to live away from there for over 9 years.

13. The Tribunal informed the applicant that it was of concern that after approximately 9 years in Australia and several visas, the applicant now wishes to embark on a higher education course.  The applicant said that he wanted to complete his study here and that there was not much work as a cook in India in response to a question from the Tribunal.  He said that the job market for a cook was about the same in India as it was in 2009 but that the wages were low.

14. There was no evidence that there would be any restriction on the applicant returning to India or any adverse consequence if he were to do so.

15. The Tribunal has considered the evidence and has taken into account the applicant’s economic circumstances in the applicant’s home country relative to the applicant’s potential circumstances in Australia.  Given the disparity in economic circumstances between India and Australia the Tribunal cannot be satisfied that the applicant has significant incentive to return to India.  The applicant has been unable to demonstrate substantial ties or personal assets in the applicant’s home country which diminishes the applicant’s incentive to return to India.  The Tribunal is concerned that the applicant’s intention to live in Australia may be motivated by factors other than study.  The applicant has not demonstrated any clear and substantial improvements arising from the applicant’s proposed study but will outlay the significant time and monetary commitment this course will require.  Therefore the Tribunal is not satisfied that the applicant has demonstrated the value of the applicant’s proposed course to the applicant’s future.

16. The Tribunal has considered the applicant’s personal ties to India.  While the Tribunal accepts that the applicant may have family ties to India, given the time the applicant has spent in Australia and the intended period of future to stay in Australia, the Tribunal is not satisfied that there is a significant incentive for the applicant to return to India.

17. The Tribunal gives weight to the evidence that since the applicant’s arrival in Australia the applicant has spent approximately 9 years in Australia and 32 days outside of Australia which indicates that the applicant does not appear to have strong personal ties to India.  Based on this evidence the Tribunal assesses the applicant’s incentive to return to India to be minimal.

18. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal. It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only in order to secure a further stay in Australia rather than due to a genuine interest in this area of study.  The Tribunal has also given regard as to whether there is any other relevant matter and finds there to be no other relevant matter to the assessment of the applicant’s intentions to stay in Australia temporarily.  The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

19. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

20. Having regard to the evidence and the oral testimony of the applicant, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for the purpose of study.

21. On the basis of the above, 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).

DECISION

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

Peter Booth
Member