Singh (Migration)

[2018] AATA 5917

Singh (Migration) [2018] AATA 5917 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjinder Singh

CASE NUMBER:  1620884

HOME AFFAIRS REFERENCE(S):           BCC2016/3022884

MEMBER:M. Edgoose

DATE:24 October 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 24 October 2018 at 1:29pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary stay – genuine student – lack of incentive to return – visa used to maintain residence – poor academic progress – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359
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 24 November 2016 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 12 September 2016. 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 visas 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) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4. On 13 April 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 27 April 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The applicant responded to the “Request for Student Visa Information under s.359(2) of the Migration Act 1958” on 23 September 2018 (AAT Folio 25-29) and informed the Tribunal that he did not consent to the Tribunal deciding the review without a hearing.

6. The applicant appeared before the Tribunal on 19 September 2018 to give evidence and present arguments.

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

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.

    Does the applicant intend genuinely to stay in Australia temporarily?

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.

    Background and applicant’s immigration history

13. The applicant gave evidence at hearing that he is from India and first arrived in Australia on 18 January 2014 on a 573 student visa to study an Academic English Program followed by a Master of Engineering. The applicant completed the two month Academic English Program between 5 May 2014 and 11 July 2014 and then commenced the Master of Engineering through Edith Cowan University on 28 July 2014 but after three semester’s the applicant ceased studying the course after failing a number of subjects and unsatisfactory course progression on 9 December 2015.    

14. The applicant applied for the current visa on 12 September 2016. The delegate refused to grant the visa on 24 November 2016 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

15. The Tribunal has considered clause 13 and 14 of Direction 69 with respect to the applicant’s immigration and travel history. The applicant informed the Tribunal that he has not departed Australia since arriving in Australia on 18 January 2014. The applicant told the Tribunal that Australia is the only country he has travelled to outside of India and that he has complied with the migration laws of the country and the relevant visa conditions. The Tribunal gives little weight to the applicant’s travel movements.

    The applicant’s circumstances in their home country                    

16. The Tribunal has considered the factors in clause 9 of Direction 69 with respect to the applicant. At hearing the applicant informed the Tribunal that he had completed his secondary schooling and a Bachelor of Technology through Kurukshetra University between June 2008 and December 2012 back in India and had never worked as he was a fulltime student before coming to Australia.

17. The applicant told the Tribunal that he had not completed his studies back in India because he “wanted to learn something in Australia that will help him on his return to India”. The applicant made no comment as to whether his initial course or the package of hospitality courses is available back in India. The Tribunal does not accept that the applicant has reasonable reasons for not undertaking the study in their home country.  

18. The applicant told the Tribunal that his parents are back in India and his brother lives in Spain where he is studying on a student visa. The applicant’s father is a farmer and his mother is a housewife. The applicant informed the Tribunal that he has been able to manage personal relations with his parents back in India while living in Australia by making contact twice a week via telephone and the social media application WhatsApp and his brother in Spain once a week via telephone or WhatsApp. In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.

19. The applicant told the Tribunal that he has no issues of concern, military service commitments or political and civil unrest back in India.

    The applicant’s potential circumstances in Australia

20. The Tribunal has considered the factors in clause 11 of Direction 69 with respect to the applicant. The applicant informed the Tribunal that he has developed a number of friendships during his time in Australia, namely the friends that he has made with the people in his course and the friends he lives with in Nollamara, which is a suburb north of Perth. The Tribunal considers the significant ties the applicant has made, the length of time the applicant has lived in Australia where he has been able to establish himself with part-time/casual employment over this period and that he hasn’t returned home since arriving would present as a strong incentive for the applicant to remain in Australia.

21. The applicant submitted to the Tribunal a Confirmation of Enrolment for a Bachelor of Business through Acknowledge Education (AAT folio 57b) commencing on 19 November 2018 and due to be completed by 30 June 2020 at a cost of AUD $33,200. The Tribunal notes the applicant only obtained this enrolment on 5 September 2018. The applicant stated that the Bachelor of Business course will provide him with the skills required to run his own business back in India. The Tribunal considers the applicant has already acquired the relevant hospitality qualifications to run his own restaurant back in India and that the student visa is being used to maintain ongoing residence in Australia.

22. At hearing the applicant confirmed that he has been enrolled in a range of packaged hospitality courses in the past through a different education provider. Between 2 January 2017 and 29 December 2017 the applicant did not complete the Certificate IV in Commercial Cookery and the Diploma in Hospitality because he did not submit his assignments on time for the Certificate IV and as a consequence his COE for the Diploma was cancelled. The applicant did complete his Certificate III in Commercial Cookery (AAT folio 23). The applicant then enrolled in a new package of hospitality courses in January 2018 and completed a Certificate IV in Commercial Cookery on 29 August 2018 (AAT folio 55) and is due to complete a Diploma in Hospitality on 29 October 2018. The applicant is due to commence his Bachelor of Business course on 19 November 2018. Considering the applicant did not complete his first package of hospitality courses for not submitting his assignments on time the Tribunal has serious doubts that the applicant will complete his current package of hospitality courses. The Tribunal considers the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

23. The applicant informed the Tribunal that he currently works between 20 and 25 hours per week part-time as an Uber driver and earns between AUD$700 and AUD$800 per week. The applicant stated that he owns his own car and he lives in shared accommodation with friends in Nollamara a suburb north of Perth and contributes AUD$120 per week towards the rent and bills. The Tribunal considers that the applicant’s living arrangements and expenses, the ownership of his own vehicle and his economic circumstances within Australia would present as a strong incentive for the applicant not to return to his home country.

24. At hearing the applicant was requested to submit his payslips and tax assessment notices for the year ending 30 June 2017 and 30 June 2018. The Tribunal accepts these submissions.

25. The Tribunal acknowledges the Statement of Purpose (DIBP Folio’s 17 – 20) provided to the Department dated 22 November 2016. The applicant mentioned in his statement his reasons for choosing his current course and provider; that he had completed a range of Internet searches regarding his education provider; the reasons why he chose to come to Australia; how his package of hospitality courses will benefit him in his future career and his ties to his home country. The Tribunal acknowledges that the applicant has maintained a focus on gaining qualifications in the hospitality industry however gives little weight to the applicant’s statement.

26. The Tribunal gives regard to the applicant’s Genuine Temporary Entrant statement to the Tribunal (AAT folio 51) dated 12 September 2018 that mentioned the applicant’s original enrolment when he arrived in Australia and his reasons for not completing the course; why he chose to study in the area of hospitality so that he can become a chef in the future and that he has been offered a job at Yellow Sapphire Hotel where he would manage any sector of the hotel and not just in the kitchen; that he has secured a new COE for the Bachelor of Business commencing on 19 November 2018; that similar courses are not offered in India to the standard that is provided in Australia; that the cost of the Bachelor of Business (AUD$33,200) course will be offset by the applicant working 20 hours per week at $20 an hour within the hospitality industry and that at the completion of his Bachelor of Business course he intends to return to India to commence his career in the hospitality industry. The Tribunal notes that the applicant is not currently working in the hospitality industry but as an Uber driver as stated in paragraph 23. The Tribunal is not satisfied that the applicant is a genuine student and that the student visa is being used to maintain ongoing residence in Australia.

    Value of the course to the applicant’s future      

27. The Tribunal has considered the factors in clause 12 of Direction 69 with respect to the applicant. The applicant said to the Tribunal that the value of his current course and the Bachelor of Business course will provide him with the management skills required to work in the hospitality industry and in the future give him skills and knowledge to expand and start up his own business. The applicant stated that he has a job offer back in India with Hotel Yellow Sapphire and that he believes he will earn approximately AUD$1500 per month. The job offer submitted to the Department was dated 16 March 2016 (DIBP Folio’s 52- 57). The course in which the applicant is enrolled in is the next phase in the package of courses. The Tribunal has difficulty accepting that a job offer made some 30 months ago will be still available for the applicant on his return to India.

28. The Tribunal considers the student visa program is being used by the applicant to circumvent the intentions of the migration program and that the applicant does not intend genuinely to stay in Australia temporarily.

29. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

30. Taking into account the considerations indicated by Direction 69 as they are relevant to the matters before the Tribunal and 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).

31. 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).

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.

    M. Edgoose
    Member