Singh (Migration)

[2018] AATA 5760

Singh (Migration) [2018] AATA 5760 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Dev Singh

CASE NUMBER:  1704147

HOME AFFAIRS REFERENCE(S):           BCC2017/155198

MEMBER:Adrienne Millbank

DATE:11 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 11 December 2018 at 3:07pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – use of student visa to maintain ongoing residence in Australia – hospitality studies – bogus document – no significant incentive to return home – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499, 359
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 1 March 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 was born in 1995 in India, and is 23 years old at the time of decision. He first arrived in Australia on a Student (Subclass 573) visa on 18 April 2014, and has been enrolled in the following courses: Bachelor of Business; Diploma of Business; Advanced Diploma of Management; Advanced Diploma of Business; and Commercial Cookery. He applied for the visa on 12 January 2017, based on his enrolment in a Diploma of Hospitality Management course starting 6 March 2017 and ending 4 March 2018.

3. 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.

4. 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). The Delegate was not satisfied that the applicant was a genuine temporary entrant.

5. The Delegate noted that the applicant had chosen a course in a similar field, leading to a qualification at a lower level than those he has already obtained, and did not accept that the applicant’s proposed course of study would assist him to obtain employment or improve his employment prospects in his home country. The Delegate noted that the applicant is not married, has no dependent children, and provided no evidence of assets or business ties to India. The Delegate concluded that he had few incentives to return home. The Delegate noted the applicant has been in Australia since April 2014, and concluded that he appeared to be using the student visa program to remain as a de facto resident in Australia.  

6. The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments.

7. The applicant was assisted by his representative, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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.

11. 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.

12. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

13. The applicant provided a written submission prior to the hearing.  In this he stated that he failed the Bachelor of Business courses at Griffith University that he enrolled in while on a Student (Subclass 573) visa, because the coursework was too difficult for him, and for this reason he downgraded to diploma level courses. At hearing he pointed out that he has been successful studying at diploma level, gaining two diplomas and two advanced diplomas in two and a half years. Copies of certificates were provided, showing the applicant was awarded Diploma of Management in May 2015; a Diploma of Business in December 2015; an Advanced Diploma of Management in June 2016; and an Advanced Diploma of Business on 6 January 2017.

14. Regarding his study plan and how it relates to his future, in his submission the applicant claimed: ‘After doing rounds of interviews for jobs and doing industry research in some of the prospective employers in my home country, I was not able to secure employment. Therefore, I opted to pursue employment opportunities in the growing hospitality industry in India. In order to be qualified for the roles in the hospitality management industry, I required formal tertiary qualifications in the Hospitality courses’. He claimed Australian qualifications are highly regarded by employers in India, as well as cheaper to obtain than in other countries. He argued: ‘Hotel Manager is a skill level 2 occupation; this means that the formal qualification required for this occupation is a minimum of Diploma and Advanced Diploma relevant to the hospitality subjects. Therefore, for a successful career in hospitality management, it is important for me to complete Diploma of Hospitality’.

15. In his written submission the applicant advised that the average salary in India for hotel managers ranges between Rs500,000 (AUD9,733) and 600,000 (AUD11,675), which is higher than for managers in other sectors. Attached to his submission was a two-page statement titled ‘Employment Prospect for Hotel Manager in India’. This describes ‘tremendous growth’ in the tourism and hospitality sector in India, and ‘huge growth potential’, with ‘many exciting jobs opportunities for hotel management graduates’. The applicant claimed in the submission: ‘I have already been offered a position of Hotel Manager in one of the prominent hotels in my home town with a starting annual salary of Rs480,000 (AUD9,346). The letter of offer is attached with the submission’.

16. A copy of an undated letter, purporting to be from the General Manager of Country Resort by AHPRL hotel in Katra, Mr Amar Singh, addressed to the applicant, was attached. This letter states: ‘After a comprehensive review of your application, we are pleased to appoint you as the Hotel Manager at Country Resort (by AHRPL). You job location will be Katra, however you maybe be required to work out of a different location as and when required. Your role will commence 1 month post completion of your Diploma of Hospitality Education program in Australia on 14/06/2020’.

17. At hearing the applicant confirmed that he has not studied since December 2016. He confirmed that he has not returned to India since first arriving in Australia, even for a family visit. He advised that since he finished his last course he has continued to be supported financially by his parents, and has occupied himself travelling within Australia, improving his English and undertaking other self-improvement activities. In his written submission, and at hearing, he stated that his parents have supported his decision to remain in Australia to study hospitality and ‘accomplish his goals’.

18. The Tribunal asked the applicant why he did not return to India two years ago, with two diplomas and two advanced diplomas, and why he has enrolled in a course with similar course content to his previous courses, but leading to a lower level qualification. The Tribunal also asked the applicant, who speaks fluent English, for further explanation as to why he felt unable to obtain employment in India based on qualifications he had claimed (at the time he enrolled in the courses) would equip him for a career in business or management in his home country. The applicant stated that he decided to pursue a career in hotel management only after trying and failing to obtain employment in India. He advised that he was losing out to people with MBAs; became aware of opportunities in the burgeoning hospitality sector; and realised he needed a further qualification in order to obtain employment in his home country.  

19. The applicant confirmed at hearing that he has not applied for jobs in India in person. He claimed that he applied online, in 2017, with interviews conducted via Skype. No evidence was provided that the applicant applied, in 2017, without success, for jobs in India based on his existing qualifications. The applicant referred the Tribunal to his job offer letter, and proffered it as evidence of his intention to return to India following the completion of his Diploma of Hospitality Management.

20. The Tribunal found the applicant vague and evasive when responding to questioned about this job offer. He confirmed that he is not related to Mr Amar Singh and that while the hotel is in his home district, the General Manager is not known to, or a friend of his family. When asked when he received the job offer, he stated, after some hesitation, that he received it in July 2017, after applying for many other jobs. The Tribunal noted that the Country Resort by AHPRL in Katri is a beautiful hotel. The Tribunal expressed surprise that the general manager of such a hotel would offer a job to a person neither he nor anyone else in the hotel had met in person, to commence three years in the future, on the condition of completing a course of study, in another country, that the person has not even commenced.

21. The applicant stated in response that the General Manager of the Country Resort (by AHRPL) hotel, Katri, held Australian qualifications in high regard and accepted that the applicant’s hospitality course would provide industry-specific skills to complement the business and management skills he already possessed. The applicant conceded that there are industry-specific courses he could undertake in India, and conceded also that the General Manager might not himself be the holder of an Australian Diploma of Hospitality Management, or any other Australian hospitality or business or management qualification. He insisted nevertheless that the General Manager’s job offer is conditional on his completion of an Australian Diploma of Hospitality Management, to complement his other diplomas and advanced diplomas.

22. When asked about his communications with the General Manager, he stated that he has talked with him a number of times. After some hesitation, he claimed that he talked with him at the time of his course enrolment, in January 2018 and, most recently, in October 2018.   

23. Adopting the procedures in s.359AA of the Act, the Tribunal advised the applicant that it had information that would lead or could contribute, subject to his response and comments, to the decision under review being affirmed. The Tribunal advised the applicant that it had obtained the following information from an internet search: the General Manager of the Country Resort hotel in Katra is not Mr Amar Singh but Mr Kuldeep Sharma; Mr Sharma has been the General Manager at least since May 2018; and Mr Sharma was the General Manager in October 2018. The Tribunal advised that this information was relevant because it indicated that the applicant did not have a job to go back to in India. The Tribunal advised that the information was relevant because this job offer was the centrepiece of his claim to be a genuine temporary entrant. The Tribunal advised that if it relied on this information it could affirm the decision under review.

24. The applicant responded that the Tribunal must have looked up a different hotel. The Tribunal pointed out that the name and address details of the hotel it checked out on the internet were identical to those on the letterhead of the job offer letter. The Tribunal advised the applicant that he could seek an adjournment or extra time to consider his response to the information, and consult with his representative. The applicant sought and was granted a ten minute adjournment to consult with his representative. He subsequently stated that Mr Amar Singh in fact worked in the human resources area of the hotel, had at some stage applied, albeit unsuccessfully, for the position of General Manager, and on this basis used the title as his own. The Tribunal found this explanation unconvincing, and is of the view that the applicant provided a document to the Tribunal that he knew to be fraudulent.

25. The Tribunal does not accept that the applicant has a job offer in India and therefore does not accept that he has significant incentive to return. The Tribunal notes that the applicant has not returned to India since his arrival in April 2014, and that should he remain until June 2020 and complete another diploma course, he would have been in the country for over six years and hold three diplomas and two advanced diplomas, with similar course content, having originally entered on a higher education Student (573) visa. The applicant advised that when he has held work rights, he has worked in Australia as a cleaner, and in a food market.

26. The Tribunal notes that the applicant speaks fluent English, and presented at hearing as intelligent (despite his provision to the Tribunal of what appeared to be a transparently bogus document), confident and articulate. The Tribunal does not accept his claim, on the evidence provided, that his prospects of employment in India are dependent on his obtaining another diploma, in Hospitality Management.

27. In his Tribunal submission letter of 26 November 2018, the applicant stated that he comes from a traditional and family oriented Indian background, his parents and three siblings are in India, and his parents are well-established financially and socially. He argued that as a single male with no relatives in Australia, he has no reason to stay here. The Tribunal accepts that the applicant comes from a well-off traditional Indian family, but notes that he is an adult, and has not returned home for a visit since first arriving in this country on 18 April 2014. The Tribunal does not accept the applicant’s family in India is a significant incentive for him to return.

28. The applicant further claimed in his submission that ‘having tertiary qualifications from reputable education providers in Australia will not only help me to achieve my professional goals but will also be satisfactory for my family and I will return home with dignity and pride’. The Tribunal notes that the applicant already has two diplomas and two advanced diplomas, in the field of business and management, and does not accept that he needs a further diploma, in hospitality management, to enable him to return home with dignity and pride.

29. Having considered the evidence, arguments and circumstances of the applicant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily.

30. Accordingly, the applicant does not meet cl.500.212(a).

31. No other relevant matter was raised by the applicant or before the Tribunal.

32. 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.

33. 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

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

    Adrienne Millbank
    Member