Singh (Migration)

[2018] AATA 5548

Singh (Migration) [2018] AATA 5548 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh

CASE NUMBER:  1713981

DIBP REFERENCE(S):  BCC2017/1000708

MEMBER:Mark Bishop

DATE AND TIME OF

ORAL DECISION AND REASONS:          4 October 2018 at 11:15 am (VIC time)

DATE OF WRITTEN RECORD:                22 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – personal ties to home country – economic disparity – developed ongoing ties in Australia – value of courses to applicant's future – poor academic performance – obtained COE one day prior to hearing – immigration history – past compliance with visa conditions – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 June 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 4 October 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant did not provide a Genuine Temporary Entrant (GTE) Statement to the Tribunal.

4. The applicant did not provide any evidence of completion or graduation from any courses to the Tribunal.

5. The applicant provided a written response dated 27 August 2018 to a request for student visa information under s.359(2) of the Migration Act to the Tribunal. It outlined the following:

   ·The applicant completed year 12 in India;

   ·He did not have a current Confirmation of Enrolment (COE) in an approved course;

   ·He had previously been employed as a self-employed farmer in India;

   ·His application for a student visa was refused on 13 June 2017;

   ·He had enrolled in an Advanced Diploma of Leadership and Management and as Advanced Diploma of Business in May 2017 and May 2016 respectively and completed neither course;

   ·He held a passport from India, first arrived in Australia in February 2014, had not returned to India since arrival in Australia and had not applied for a visa to any other country;

   ·His annual living expenses in India were approximately $20,000;

   ·He las saw his mother and sister in India in 2014 and last saw his spouse in Australia in January 2018;

   ·He owned land in India;

   ·He advised information about military service commitments and issues relating to political or civil unrest in India were not applicable;

   ·He advised he would be looking for a job at the international level in his home country.

6. The applicant provided a COE to the Tribunal for enrolment in an Advanced Diploma of Leadership and Management in the period 3 October 2018 until 13 October 2018. He provided evidence he had paid $1,000initial pre-paid tuition fees. He did not provide evidence of payment of any portion of tuition fees. The COE was dated 3 October 2018 and obtained the day before the scheduled hearing.

7. In evidence the applicant advised the Tribunal he had not engaged in any study for a period of five years prior to the review hearing date. He advised the Tribunal the overwhelming majority of his time had involved work and not study. He advised the Tribunal he wished to continue living in Australia. The Tribunal is inclined to the view the applicant obtained a COE on the day prior to the scheduled hearing out of a desire of prolonging his stay in Australia and with the purpose of extending his stay in Australia.

   Ministerial Direction Number 69

8. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

9. The Tribunal considers cl.9 and 10 of MD69 the applicant’s circumstances in his home country.

10. The applicant advised the Tribunal there were no educational institutions in his home city of 300,000 people. He advised he did not speak to any educational institutions in India about possible enrolment or course offerings. He advised he did not look at the availability of courses in India. He did not look to apply to any educational institutions in India. He did not apply to any educational institutions in India. He advised he did not speak to any professional experts concerning the availability of courses in his home country. He did not provide any advice to the Tribunal as to his reasons for enrolling in particular courses in Australia.

11. The Tribunal is inclined to the view the applicant does not have reasonable grounds for not undertaking the study in his home country or region.

12. The applicant advised his father died in April 2014, his mother was alive and his two sisters were married and had left the family home. He advised his mother owned a farm in India, his family did not own any other assets, he receives approximately $10,000 per annum in remittances from India, he had not returned to India since coming to Australia. He did not provide any detail as to ongoing contact of any form with family in India. He did not advise of any community connections or relationships in his home country. He did not advise of any concerns relating to the management or administration of his mother’s farm in India.

13. The Tribunal is inclined to the view the applicant’s personal ties to his home country are minimal. He has the normal obligations of respect and regard for his mother. She assists in providing significant sums to the applicant in Australia.

14. The Tribunal is unable to conclude these limited personal ties to his home country serve as a significant incentive to return to India.

15. The applicant advised he works 20 hours per week (sometimes less) as a trolley pusher and cleaner earning approximately $500 per week. He receives approximately $10,000 per annum from India and his expenses are considerably less than his income. He advised he earns in Australia approximately 10 times what he could earn in India. In evidence he advised he did not have any military service commitments and was not aware of any political or civil unrest in his home country. The Tribunal is inclined to the view the applicant’s economic circumstances in Australia present as a significant incentive for the applicant not to return to his home country.

16. The applicant advised he belonged to a medium income family with significant land holdings that produce a a large income some of which is remitted to the applicant in Australia.

17. The Tribunal considers cl. 11 of MD69 the applicant’s potential circumstances in Australia.

18. The applicant advised he had spent only six months engaged in study since his arrival in Australia in 2014. He advised he had not studied for most of that period. He advised his father died, he got married then divorced and got stressed and depressed. In evidence he advised he did not seek and did not receive any psychiatric or psychological counselling or professional assistance or counselling relating to this stress. Instead he spoke to his lawyer.

19. His friends gave his medical advice and he did not seek advice from a medical expert.

20. He advised his only activity in Australia since arrival had been six months of study and work that had been irregular of late. In response to a question from the Tribunal as to what he did every day between 6am and 11pm he advised he did little and kept thinking he had spoilt his own life.

21. He advised he goes to temple in Melton on a regular basis, at least twice per week. He advised the Sikk community in Melbourne was important to him. He participates in temple activities of food preparation, food clean-up and evening communal activities. He advised he socialises with friends sometimes and spends time with friends or family of friends. He sees friends, elders and members of the Punjabi community in Melton and wants to continue living in Australia.

22. The Tribunal is of the view the applicant had developed a set of ongoing ties in Australia. Those ties are of work, community involvement and participation, and a network of friends and colleagues derived from his participation in temple within the Punjabi community in Melbourne. The Tribunal is unable to conclude study plays a major role for the applicant in Australia. The Tribunal is of the view those ties as outlined do present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa program to circumvent the intentions of the migration program and is being used to maintain ongoing residence.

23. The Tribunal considers cl. 12 of MD69 the value of the course to the applicant’s future.

24. The applicant advised he was of the view study in Australia was held in high regard in India. At the time of his father’s death he considered returning home. His mother advised him not to return to India as there was nothing for him in India. She advised he could make a better life in Australia.

25. He has not applied to any companies in India for work. He had not approached any Chambers of Commerce for advice concerning work in India or the utility of his proposed course of study. He did not provide a GTE Statement to the Tribunal. He advised he wished to continue living in Australia as it was better than other countries. He did not submit any evidence of past employment or business activities in India. He did not relate his many enrolments in VET level course in Leadership and Management or Business to potential work in his home country. He did not provide an explanation for his poor study outcomes over a sustained period of time in Australia.

26. The Tribunal is disturbed the applicant only obtained a COE in an approved course the day prior to the scheduled review hearing. It suggests little pre-planning or considered thought as to the utility of the proposed study.

27. The Tribunal is not satisfied that the applicant obtaining qualifications is likely to enhance his remuneration level or career prospects significantly upon completion of his study.

28. The Tribunal considers cl. 13 and 14 of MD69 the applicant’s immigration history.

29. The applicant entered Australia on a subclass TU 573 student visa initially to undertake a Bachelor of Information and Communication Technology. The applicant did not commence his study in this course but instead enrolled in different courses and never commenced his studies. He then enrolled a VET courses few days before his TU 573 student visa expired. The delegate made a finding the applicant did not undertake studies for a period of twenty two (22) months. He again enrolled in a VET course the day before the scheduled review hearing.

30. The applicant’s last Student visa subclass TU 573 was subject to conditions 8202 and 8516 which requires students to be enrolled in a registered course and continue studying. The period during which the applicant did not undertake any studies clearly demonstrates that he did not comply with visa condition 8202 and 8516. The applicant appears to have only re- commenced studies for the purposes of this visa application in order to maintain ongoing residence in Australia. These are a strong indication that the applicant may again fail to abide by the conditions of his student visa or any other visa in future. The applicant has provided only limited details of his employment overseas and in Australia. The delegate made a finding that the applicant had purposely excluded this information to evade further investigation of a possible breach of condition 8105 (work limitation). The applicant has never travelled outside Australia and there is no evidence that he has travelled to any other country even to his home country.

31. When taking these into consideration in conjunction with other aspects set out in this decision record, the Tribunal is unable to be satisfied that the applicant will comply with immigration laws in future or that he will return to his home country at the end of his proposed stay in Australia.

32. The Tribunal considers cl. 15 and 16 of MD69 if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant any other relevant matters

33. As the applicant is over 18 years of age, the intention of their parent, legal guardian or spouse was not relevant to the Tribunal’s assessment.

34. The Tribunal has considered whether there is any other matter that is relevant to the assessment of the applicant’s genuine intention to temporarily stay in Australia and find that there are no other relevant matters for consideration.

35. The Tribunal has considered all of the information provided by the applicant in support of their application. On balance, the Tribunal is not satisfied that the information the applicant has provided regarding their circumstances in their home country, potential circumstances in Australia, immigration history and the value of their proposed course to their future are sufficient to demonstrate that they are a genuine temporary entrant.

    DECISION

36. The Tribunal affirms the decision under review.

    Mark Bishop
    Member