Singh (Migration)

Singh (Migration) [2019] AATA 4945 (11 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr GURJIT SINGH
CASE NUMBER:  1711824
HOME AFFAIRS REFERENCE(S):           BCC2017/1008130
MEMBER:David Barker
DATE:11 February 2019
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 February 2019 at 10:17am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – multiple enrolments in different subject areas with different education providers – non-commencement and non-completion of courses – value of studies to future employment – employment and earnings in Australia – potential earnings in India – decision under review affirmed
LEGISLATION
Migration Act 1959 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)
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 Immigration and Border Protection on 1 June 2017 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 14 March 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of .500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.
The applicant appeared before the Tribunal by telephone on 14 November 2018 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a national of India and is 33 years old.
The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in January 2014 on a Subclass 573 Higher Education Sector Student visa for the purpose of studying a packaged program of study including Certificate IV in Business, Diploma of Business, IELTS Preparation and Bachelor of Business. The delegate noted that records indicate that after completing Certificate IV in Business, the applicant did not commence studies for Diploma of Business, IELTS preparation and Bachelor of Business and in July 2014, the education provider cancelled enrolment due to "Non-commencement of studies".
The delegate noted that records indicate the applicant then enrolled with another education provider and did not complete studies in Certificate III & Diploma of Horticulture, Diploma of Management and Bachelor of Business. The delegate noted that the applicant then went on to enrol and completed courses in Certificate IV in Small Business Management, Diploma of Business and Advanced Diploma of Business with yet another education provider. At the time of application for the Subclass 500 Student visa, the applicant was proposing to study Certificate IV in Commercial Cookery, Diploma of Hospitality and Bachelor of Business, with the latter course finishing in November 2021.
In determining the applicant did not meet the required genuine temporary entrant criteria, the delegate noted that applicant has not attempted to use their current qualification to gain employment in India has failed to provide a clear career plan following the completion of their studies. The delegate noted that applicant had again enrolled to study Bachelor of Business but has twice previously enrolled in this sort of higher education sector course but never attempted to study the course.
On 28 September 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 14 November 2018. That invitation among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.
On 12 November 2018, the Tribunal received documents from the applicant including evidence of his current and past academic study in Australia and a Statement of Purpose.
The Statement of Purpose provided by the applicant states:
This statement is written to address Genuine temporary entrant criteria to review my student visa application. Through this statement, I address following criteria:
·Reasons for choosing to undertake Diploma of Hospitality management & Bachelor of Business courses
·Reasons for choosing the education provider: Christian Heritage College
·Reasons for choosing to study in Australia rather than in my home country India
·My planned living arrangements in Australia
·Relevance of Diploma of Hospitality management & Bachelor of Business courses to my academic/employment background
·Relevance of Diploma of Hospitality management & Bachelor of Business courses to my future career/education plans
Reasons for choosing to undertake Diploma of Hospitality management & Bachelor of Business course studies
By doing these courses, I am planning to learn following skills in the fields of People management and Business operations management:
·Manage organization's quality customer service
·Manage organization's budget & financial plan
·Manage organization's operational plan
·Develop a highly skilled team & manage their performance
·Manage business risk by Implementing continuous improvement in business
·Manage marketing process
·Look for Franchise opportunities
·Business Economics
·Manage organization in global environment
·Business and corporate law
·Finances for business
·Accounting for business decisions
·Corporate accounting
·Marketing management
·Innovation and entrepreneurship
Along with the above mentioned learning outcomes, I endeavor to acquire skills of how to run a Hospitality establishment successfully on a medium to large scale range of operations.
Reasons for choosing the education provider: Christian Heritage College
Christian Heritage College is popular for providing courses in Management and Business sector in Brisbane, Queensland. It is one of the long established institute in Brisbane. They have dedicated simulated practical training facilities, which are state of the art facilities.
And also, this college is primly located in the Brisbane CBD and easily access to Public transport. I understand that this college is accredited with a national body as a private higher education provider and the education they provide is a quality education.
Reasons for choosing to study in Australia rather than in my home country India
India is a great country with excellent exposure within as well. It is a fast growing country. My decision to pursue studies in Australia was mainly influenced by the education system in India. The education system there focused mainly on filling the students with huge amount of knowledge but no practical experience. I have always had a strong desire to be hands on with my knowledge. This motivated me to come out of my home country and seek worldly exposure. Australia is known for its quality education and if I graduate in Australia, my qualifications are recognized for anywhere in this world and be able to obtain employment with an International hospitality establishment.
Also, I understand that education in Australia is streamlined under Australian quality frame work and that ensures that education I receive is quality accredited whereas in my country there is no such frame work or quality endorsement.
Also, the English language requirement is also not at very high level as in some other advanced countries I have to pass both Standardized test (SAT) and Test of English as a Foreign Language (TOFEL) to obtain the college admission whereas here in Australia it is only 5.5 in IELTS or equivalent. This is really helpful in a way because English is not my first language.
My planned living arrangements in Australia
I am living in suburb area of Brisbane. We are a people of 03 sharing the house and paying $600 each per Month. My living and education expenses are supported by my Parents. These living arrangements are giving me an opportunity to understand cultures of different people, which enhances my understanding of other communities. I am a very traditional Sikh boy and I have my family living in India and our family relationships are strong incentive for my return to home country, after completion of these studies in Australia.
Relevance of Diploma of Hospitality management & Bachelor of Business course to my
academic/employment background
After completion of my high school studies, my Parents have planned to provide me quality education and send me to Australia to study Business studies starting from Certificate IV to Bachelor of Business.
During my studies of Business courses, I was always thinking, which business I will foray into? Whether it is an agriculture business or Accounting business or Information technology or service industry. My stay in Australia had motivated me choose Hospitality industry as my entry point as I have seen in Australia how a food can be combined for hospitality and leisure purposes. In my observation, I found that Australia is a center of multiculturalism and is a hub of multicultural food. At this juncture, I have decided to learn commercial cookery and Hospitality management to acquire fundamental skills to enter into Hospitality business. I have successfully completed my trade certificate of IV in commercial cookery area and soon completing Diploma of hospitality management, by March 2019.
Relevance of Diploma of Hospitality management & Bachelor of Business course to my future career/education plans
After completion of my studies in Australia, I want to pursue my career as a Service Manager with a hospitality business in India. After gaining a few years of work experience, I will endeavor to look for high level managerial positions with international hospitality establishments in India or Hospitality destination countries like United Arab Emirates and Bahrain etc.
The Tribunal gave the applicant time following the hearing to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter, including banking and taxation records to support his claim to not have a financial incentive for seeking to maintain his residency in Australia.
On 29 November 2018, the Tribunal received further documentary evidence from the applicant, including: PAYG taxation records pertaining to the 2014, 2015, 2017 and 2018 income years, bank account statements and a summary of his Australian employment history.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 intends genuinely to stay in Australia temporarily.
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?
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.
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.
The Tribunal is satisfied that the applicant has provided evidence that he has successfully completed the following courses:
·Certificate IV in Small Business Management – August 2015 / January 2016
·Diploma of Business - February 2016 / August 2016
·Diploma of Business – September 2016 / April 2017
·Certificate IV in Commercial Cookery – August 2017 / July 2018
With regard to whether the applicant is at the present time seeking to undertake a course that is consistent with his current level of education and whether the course will assist him to obtain employment or improve employment prospects in his home country, the Tribunal put to the applicant that his current study in the vocational field of cooking and hospitality is different and quite unrelated to courses he has previously undertaken whilst he has been in Australia. The Tribunal explained that this gave rise to the concern the applicant has a pattern of not engaging with the higher education sector courses that he has repeatedly enrolled in and instead has enrolled in a series of less expensive, brief courses at the diploma level and that this is a pattern that may be indicative of someone who is using Student visas to maintain their residency in Australia for reasons other than study.
In response, the applicant gave evidence that he was new to study when he first came to Australia and that he started work in a restaurant for 20 hours per week when he was studying in his first course. He said he had difficulty with the business course he initially enrolled in and failed most of the assignments in the subjects he studied. He said he changed to a horticulture course as his father, who is a farmer and pharmacist in India, thought it was a good course for him to study. He said he was not aware this would cause him visa difficulties because he had not maintained study in the package of courses leading to the higher education sector qualification, namely a Bachelor of Business. He said that he stopped study in the horticulture course when this possible visa difficulty became apparent to him and re-enrolled in a package of courses leading to a bachelor of Business. He said that he then realised he was still not ready to study a higher education sector level course and as he was interested in cooking and hospitality, from his time working in this vocational sector, he undertook a Certificate IV in Commercial Cookery, which he completed and that he is now studying a Diploma of Hospitality Management.
The Tribunal invited the applicant to make any further comments he may wish to concerns arising from his pattern of enrolling in, but then commencing study in the Bachelor of Business courses. In response, the applicant said his study in the horticulture course was going smoothly until a friend told him of the potential visa difficulties that this may cause him. He said that he did not commence study in the Bachelor of Business degree at Griffith University because they would not give him credit for his previous studies with a different education provider.
In response to the Tribunal noting that the Statement of Purpose and earlier written statements provided to the Department provide no explanation for his failure to commence, or complete a number of courses since his arrival in Australia, the applicant gave evidence that he was confused, homesick and depressed when he first came to Australia and that this resulted in him making mistakes. In response to a question as to what sort of mistake he was referring to, the applicant said he accepts it was a mistake for him to enrol in the horticulture course.
The Tribunal is not satisfied that the applicant has provided a convincing explanation for his failure to commence the higher education sector Bachelor of Business courses he enrolled in during 2014 and 2015, nor for his failure to complete any courses in the period from when he commenced studies in Australia in January 2014 up until August 2015 when he commenced the Certificate IV in Small Business Management. The Tribunal considers this 20 month period, in which the applicant failed to engage effectively with study or progress academically, to be of significant concern when considering whether his motivation for seeking to maintain his residency in Australia is to study. The applicant’s concession that he enrolled in the Bachelor of Business for the second time because he was concerned about his visa status, rather than from a genuine wish to undertake this higher education sector courses, and then failed to commence the Bachelor of Business courses adds weight to the concern about the applicant’s study history and the actual motivation behind his study choices.
The Tribunal acknowledges the applicant’s contention he has developed considerable work experience in the hospitality sector and that he considers his current study pathway will improve his chances of future employment in India or a third country in this industry sector. The Tribunal has placed some weight on this claim but is not persuaded the available evidence supports the applicant’s claim his future employment or business opportunities will be enhanced by his gaining a Bachelor of Business qualification, as the evidence does not support the proposition the applicant will engage effectively in or complete this sort of higher education sector course. In the view of the Tribunal, the applicant has a stable employment pattern in both the hospitality and transport industries and his study in the hospitality sector, whilst consolidating his employability in this industry sector, is not his primary motivation for seeking to maintain his residency in Australia.
The Tribunal has reviewed the applicant's rational for wishing to study in Australia, rather than his home country. The Tribunal is not fully persuaded by his claims in relation to this issue, as his overall lack of academic progression and apparent inability, or lack of motivation to maintain study at a higher education sector level is not indicative of a person who finds the Australian academic structure fully suitable to his apparent needs, capacities or interests.

The applicant gave evidence that he wants to open his own restaurant business in his home country and that the previous management and marketing courses have given him skills he can use in this future business venture. He said his current study in cooking and hospitality management and the Bachelor of Business course he will then undertake will provide him with relevant skills as well. The Tribunal has placed limited weight on this claim, as he has not provided any probative evidence of research he has undertaken in relation to specific employment or business opportunities in India following the completion of his study in Australia.
As to his claim, in his written statement that his living and education expenses are supported by his parents, in his oral evidence the applicant modified this claim and said his education fees are mostly paid by funds sent to him by his parents. He conceded he has had various forms of part time employment since arriving in Australia in 2014, details of which are documented in a work history he provided the Tribunal following the hearing:
2014
·     Layaway depot (door to door marketing),
·     Queensland Australia
·     Mother India restaurant, Queensland, Australia.
·     First Response Security, Queensland Australia.
·     Southern Cross Security, Queensland, Australia.
·     Wilson Security, Queensland Australia.
2015
·     First response security, Queensland Australia
·     Southern cross security Queensland Australia
·     2 Fish restaurant, Queensland Australia.
·     NQ security, Queensland Australia.
·     SR Transport and coaches, Queensland
·     Australia.
2016
·     I was giving more attention to my study and health so I didn't work much in 2016.
2017
·     NQ Security Queensland, Australia.
·     Charter Security (JB hi-fi), Queensland Australia
·     Saabi's kitchen, Queensland Australia. (As a
volunteer to make third party report and get experience in the kitchen work for my certificate IV in cookery).
·     SR Transport and coaches, Queensland Australia
2018
·     SR Transport and coaches, Queensland Australia
·     Saabi's kitchen, Queensland Australia
With respect to his recent employment, the applicant gave oral evidence he. He works for 20 hours per week in Saabi's kitchen and that he is paid in cash and that he also works for also works for a transport company.
The applicant gave evidence he has declared all of his employment earnings to the Australian Taxation Office (ATO) and that he has met his living expenses from his employment earnings. In support of his claim regarding his reporting his employment earnings to the ATO, the applicant provided PAYG summaries showing that: in the March to May 2014 period he had gross earnings of $3,651; for the 2015 income year, gross earnings of $3,898; for the 2017 income year, gross earnings of $19,297 and for the 2018 income year, gross earnings of $50,024.
The Tribunal has reviewed the account statements from a CBA Smart Access account (xx4054) provided by the applicant following the hearing and notes that in the July to November 2018 period. There is no indication in the financial records provided of funds remitted to the applicant, for his education expenses, from his family in India. There is an indication of regular wages amounting to $793 per week from ‘SR transport’, which the Tribunal has taken to be the applicant ’s earnings from employment with this transport company. There are also periodic cash deposits, but the funds deposited in cash do not appear to equate to the applicant’s reported earnings from casual employment at the Saabi's kitchen restaurant, where he gave evidence he is paid in cash for 20 hours work per week. There are also frequent transactions between this CBA account and other CBA accounts (xx2920, xx2568- Gurjit Singh’, ‘CommBank app - Gurjit Singh’,). Amounts transferred between these accounts involve significant amounts and appear to reflect the accumulation of funds in these other accounts, which the Tribunal is satisfied are account operated by the applicant. In reviewing these financial records, the Tribunal notes there are also transactions between the applicant and other people regarding rent and other matters and these have not been considered as a reflection of potential employment earnings accumulated by the applicant. The Tribunal acknowledges the applicant’s claim he reports all of his employment earnings to the ATO and that his reported gross income in the 2018 was in excess of $50,000. The Tribunal is nonetheless concerned the applicant has not been fully transparent in the financial records he has provided following the hearing, in response to the request he provide statements from all bank accounts he is operating in Australia.
After reviewing the available evidence in relation to the applicant’s financial circumstances, the Tribunal does not accept the claim in his written “Statement of Purpose that his living and education expenses are supported by his parents, or his subsequent oral evidence that only his education fees are mostly paid by funds sent to him by his parents. The Tribunal is not satisfied the financial records provided by the applicant shed light on all of his employment income, particularly his cash income from his work in a restaurant in Brisbane. When consideration is given to the difference in the Australiana and Indian economies is taken into account the Tribunal is satisfied the applicant has a significantly higher potential income earning potential, from his casual employment in Australia than he would have for comparable work in his home country and considers this to give rise to the concern that he has an economic incentive for seeking to maintain his residency in Australia.
As to his ties to his home country, the applicant said he has his parents, siblings and numerous other relatives in India. He said his brother runs a transport company and his father is a pharmacist. The applicant said he has no relatives in Australia. He said he has no military service commitments in India and no concerns about returning there because of civil, or political unrest.
As to his plans for the future, the applicant said he will return to India after he has completed his studies in Australia. He said that he will either open his own business or, if he successfully completes a Bachelor of Business degree he will seek work as a service manager in Oman or the UAE.
In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled and a Diploma of Hospitality Management which finishes in March 2019, he has stronger family ties in India than Australia, that he has successfully completed 4of the courses the 18 courses in which he has enrolled in while on the student visas and all the other matters he has raised. However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.
The Tribunal is therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.
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).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Barker
Member

[2019] AATA 4945

11 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction