SINGH (Migration)

[2018] AATA 5881

SINGH (Migration) [2018] AATA 5881 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PRABHJOT SINGH

CASE NUMBER:  1707811

HOME AFFAIRS REFERENCE:                BCC2016/4301928

MEMBER:Lilly Mojsin

DATE:24 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2018 at 3:46pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – continued to work but did not continue studies while holding bridging visa – no strong incentive to return after his studies – maintain ongoing residence in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
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 29 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 applied for the visa on 20 December 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 applicant appeared before the Tribunal on 12 July 208 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The delegate in this review 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) because the delegate was not satisfied the applicant was a genuine temporary entrant as a student.

5. The applicant provided to the Tribunal

   ·Confirmation of Enrolment to study a Bachelor of Business commencing on 12 December 2016 and ending on 31 July 2019

   ·reference from Neil Chapel from the Australian Vocational Learning Centre that the applicant is a diligent and hard-working student who has kept a high level of attendance and progression

   ·reference from Sandip Chand from the Australian Vocational Learning Centre that the applicant is a dedicated and hard-working student always giving his best to his studies

   ·statement of attainment Certificate IV  in Business Management

   ·Certificate of Business Administration

   ·Certificate III in Food Processing Retail Baking Cake and Pastry

   ·statement by the applicant that his plan is to open a bakery in Amritsar city and describing details of the bakery that he intends to open. The bakery will be managed by the applicant and his brother who will provide funding from their own savings.

   ·Medical report from Granville Bridge Medical Centre

6. The applicant submitted to the Tribunal that he has received an exemption for 10 subjects because of his previous studies and he only needs to complete 14 more subjects to obtain a formal business degree. He has already completed half of the first semester with more than 90% attendance and exceptional marks. He has been a genuine student throughout his studies and intends to start his own business venture in India. He has strong family and business commitments. His parents and his wife, who is working as an assistant professor of mathematics in India, are his family commitment for which he has to go back to India after completing his studies. He and his family have purchased an investment in India to set up his business venture. He would like to submit that his course will give him a much-needed safety net in case his business goals do not materialise soon enough.

7. At the Tribunal hearing the applicant confirmed that he was studying a Bachelor of Business. He had also completed Diploma of Marketing and Advanced Diploma of Marketing, Diploma of Accounting and Advanced Diploma of Accounting, Certificate IV in Business Management and an English course.

8. The applicant said that he started studying in January 2017, he has just finished one semester. He did not study for nearly 1 year as he was stressed. His doctor advised him that he could now study. He is not studying now as his college stated he can return when he gets his visa back. He is working in sales at Flemington markets. He works for Top Class fruit market. Before that he was working in part-time jobs cleaning etc.

9. The applicant has been in Australia since 2007. Asked why he was going to work but not studying, he said he only needs one year to finish his degree. Put he has studied a number of courses including marketing, accounting, business but he has not returned to India. He said he studies a bachelor in business and will be get credits for prior studies. Asked why he could not continue his studies but was able to go to work, he responded the college said he had to have a visa. It was put to the applicant that he had a bridging visa and could study.

10. It was put to the applicant that he was in Australia for 11 years studying different courses. He said that he wants to finish a bachelor of business. It was put that he could have finished the course if he had continued to study. He said he only needs one year to continue to finish his studies.  Put he is working in Australia to support his family in India. He said he only works for 20 hours.

11. Put he has done a number of different course, none of which led to a particular career. He said that he has provided a business plan and he plans to start a bakery. If his business is not successful then he can get a job in a factory. The bachelor’s degree will be valuable. Put if it is so valuable for his future career to get a bachelor degree then why did he not study his course previously. He said he did not understand business system in Australia.

12. He cannot study a bachelor of business in India as there is no practical knowledge. In India he can get degree quickly and easily. College already gave him 10 exemptions and he only has 12 subjects to go. He has to left to study micro economics, macro- economics, international marketing. He forgets the other subjects. Also WHS and Leadership in Work Environment. Put he has done these subjects before, for example  WHS in his Advanced Diploma. He agreed.

13. Asked if he and his brother have a bakery then why study leadership, he said if his business fails then he will need leadership.  Asked how the study of micro economics assists him in his bakery business, he said it is a small business. Asked why he needed to study a bachelor of business to start a bakery he said he only needs to do 12 more subjects. He has made enquiries with a number of companies should he be unsuccessful in his bakery business. Asked what major he would like to study in his course, he said he wanted more about introducing his product to the market. He said that he wanted to major in accounting, business management.

14. The applicant has obtained a Bachelor of Science in India but he worked in India part time as a tutor. He could not get a job in India because he did not have a doctorate level. He did not study science in Australia because they are very expensive courses.

15. When he came he and his family had a plan to open a business. They purchased land for his business for him. He needs less than 1.5 years. He is the first child of family to study outside India and it is his parents dream. He has not paid any more money to Holmes College he only paid $5000. He just needs 1.5 years to complete his bachelor degree. It is his parents dream for him to complete.

    REASONS AND FINDINGS

16. 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 the applicant.

17. Relevantly, cl.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.

18. 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;

    ·……; 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.

19. 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.

20. The applicant is a national in India, he is married, and his wife and parents live in India. The applicant has been in Australia since 2007 and he has studied a number of disciplines, cookery, accounting, marketing and business. The applicant was a dedicated and hard-working student always giving his best to his studies.

21. The Tribunal accepts that studying in Australia, rather than India, would give the applicant an advantage to obtain employment in a large corporation in India. The applicant states that he intends to open a business in India on his return, a bakery, with his brother or failing that, a position in a large corporation in India.

22. The applicant does not have military service commitments in India. There is no political or civil unrest in India. The applicant has returned to India on a number of occasions to visit his family and to marry in 2016. There is no evidence of an adverse immigration history in regard to the applicant.

23. The Tribunal places greater weight on the following:

24. The applicant presently works at the Flemington markets but he does not study despite providing the Tribunal with a Confirmation of Enrolment. The Tribunal does not accept his explanation that his college advised him that he can return to college when he gets his visa back. The applicant holds a bridging visa that allows him to continue his studies and to work. He continued to work but he did not continue his studies.

25. The applicant commenced studying a bachelor of business in 2017. He had provided a medical certificate from Granville Bridge Medical Centre, dated 10 April 2017, stating that he received treatment for depression and anxiety for the period 10 April 2017 to 10 August 2017. The applicant’s evidence is that he continued to work during this period. The medical report indicates that the applicant received treatment from 10 April 2017 to 10 August 2017 inclusive but the medical report is dated 10 April 2017. There is no explanation in this medical report as to why the doctor would provide treatment in advance. There is no prognosis nor any explanation as to why the medical treatment would cease on 10 August 2017.  Further the medical report does not explain how the applicant was able to continue to work but was unable to study. The Tribunal place no weight on this report, therefore the Tribunal is satisfied that the applicant has not provided an explanation for ceasing his studies in 2017.

26. The applicant has studied science in India and he obtained a Bachelor of Science. He was unable to obtain employment in his chosen field in India. The applicant has completed a number of courses in Australia that do not lead to a career path. The applicant advised the Tribunal that a business degree was invaluable to his career. When asked why he did not study this course earlier, the applicant responded that he did not understand business systems in Australia. The Tribunal rejects this explanation, the Tribunal is of the view that the applicant studied a number of different courses at the Vocational Education and Training Sector level in order to extend his stay in Australia.

27. The applicant claims that he wishes to open a bakery in India with his brother and failing this endeavour he will obtain a position with a large corporation because he has a bachelor of business. As the applicant has not been studying for his bachelor of business course since his initial enrolment since 2017, the Tribunal does not accept his claim that he intends to complete the course within 12 to 18 months and then return to India.

28. The applicant has strong ties in India, in the form of his immediate family. The Tribunal finds that these ties do not, of themselves, constitute a strong incentive to return to India.

29. The Tribunal does not accept the applicant’s explanation for ceasing his studies in 2017 and as the applicant continues to work and is not studying, the Tribunal is therefore satisfied, on balance, that the applicant has applied for a student visa with the intention primarily of working in Australia and maintaining residence in Australia.

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

32. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa is 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

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

    Lilly Mojsin
    Member