Singh (Migration)

[2018] AATA 5550

Singh (Migration) [2018] AATA 5550 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tejpal Singh

CASE NUMBER:  1713551

DIBP REFERENCE(S):  BCC2017/1027451

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          2 October 2018 at 3:39 pm (VIC time)

DATE OF WRITTEN RECORD:                23 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 – evidence of past study – academic progress – strong incentives to remain in Australia – 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 14 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 2 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. MEMBER:  Mr Singh, to be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the Regulations. 

4. You applied for a student visa on 15 March 2017 and your application was refused on 14 June 2017 because having considered your circumstances the delegate was not satisfied you met the Genuine Temporary Entrant criteria and therefore did not satisfy clause 500.212.

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. To satisfy clause 500.212 an applicant must be both a genuine student and a genuine temporary entrant.  To be a genuine student you must be engaged in and applying yourself to a meaningful program of study, progressing academically down an identifiable path.  To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily.

7. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant decision makers must have regard to what is known as Ministerial Direction No. 69 and the issues in that direction. 

8. They were detailed in the primary decision. They include:

   ·     your circumstances,

   ·     the value of your courses to your future,

   ·     your immigration history,

   ·     your incentive to remain in Australia or return home,

   ·     if you are using the student visa program to maintain ongoing residence in Australia, and

   ·     any other relevant matters.

9. It is not intended as a checklist but it is a guide for decision makers in considering an applicant’s circumstances as a whole and reaching a finding about whether an applicant satisfies the genuine temporary entrant criteria.

10. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No. 69, and be satisfied that you are a genuine student who intends to stay in Australia temporarily.

11. You told the Tribunal you had read and understood the primary decision and we read from it and discussed it today in some detail. The primary decision and its detailed references to the issues in Direction No. 69 put you on notice of the issues in your case.

12. Given it was the reason that your application was refused, with the hearing invitation we advised we would assess whether or not you met the genuine temporary entrant requirements and we asked you to provide a statement addressing the issues in Direction 69 and we provided you with a copy of that direction.

13. You provided a document that you headed ‘Letter explaining genuine temporary entrant’, however it did not address most of the issues in Direction 69.  However, at today’s hearing you have answered a number of questions that went to those issues. 

14. You were asked to provide a range of information, including evidence of past studies, evidence of current enrolment and an explanation of any gap in studies.

15. You have provided evidence of some studies.  You have provided academic transcripts for a Certificate IV in Accounting and a Diploma of Accounting that you studied in 2014, a Certificate III in Light Vehicle Mechanical Technology that you studied in December 2015 and January 2017, a Certificate IV in Automotive Mechanical Diagnosis, and evidence in the form of I think a Certificate of Enrolment that you are currently an Advanced Diploma of Business at Acumen.  You also provided evidence of enrolment in a Bachelor of Business Management that I will speak more about shortly, a course that commences in March next year.

16. The evidence you have provided, as I say, is of studies in 2014 of a Certificate IV in Accounting where you passed 9 of 18 units. You failed 5 and in 4 units the result was “Inadequate Participation – Withdrawn”.

17. In the same year 2014 you studied three units in the Diploma of Accounting, and failed all of them.  There was another unit in the Diploma of Accounting listed in 2015, however it is noted as “Withdrawn after census date not attended”, which I presume means you did not attend the class.

18. So there is no evidence of study between December 2014 and December 2015.  You say during that time, “Oh yes, well, no, I was studying during that time a Diploma of Accounting but I just do not have any evidence of it”.  Well, the Tribunal is not satisfied that you were studying during that time and does not believe that your answer satisfactorily explains that study gap at all.

19. The situation is, you said you came to Australia in November 2013 to study accounting, a Bachelor of Accounting, courses that would normally have taken probably three years.  You have now been here almost five years and you have completed courses that collectively have taken two years and three months.  The Tribunal does not consider this to be the progress of a genuine student.

20. As I said you have provided evidence of enrolment in a Bachelor of Business Management at an education provider called Elite Education Institute. An organisation based in Sydney.  You say they have teaching facilities here in Melbourne.  And when I asked you where you say, “Well, I do not know”.  I asked you why you have chosen to study a Bachelor of Business and you give vague answers about it being good for your future and whatever.  But when I asked you specifically what it is that you want to study in this course you say “Economics”.

21. The Tribunal notes that there are no “Economic” units listed in your chosen course.  You do not know how many units you need to pass to study this course and you have no knowledge of the units that comprise the course, which leads the Tribunal to find you have done no research into the course you are choosing to study, and I believe this indicates you are not particularly interested in progressing academically but have chosen this course because it will enable you remain living in Australia.

22. When I ask you why you do not do your intended studies at home you look at me and say “Well, you know, courses in Australia are better considered”.  Well, as I say, there are number of outstanding universities in India, particularly in the Punjab where you are from, where you could study these courses at a much lesser cost than being here in Australia.

23. Student visas are granted with the expectation that visa holders will remain enrolled and studying.  And, as I have already stated, the Tribunal does not believe that your study history is that of a genuine student and in particular considers your study gaps are not the behaviour of a genuine student.

24. You are requesting a stay in Australia until October 2021, which would bring your stay in Australia to a period of eight years on temporary visas.  And while I accept that some educational and career pathways require extensive study I am not satisfied that you have established that your future goals fall into this category.

25. The Tribunal finds it difficult to reconcile your extensive proposed stay in Australia with your claim you are a genuine temporary resident but rather, as I said, believes you are seeking to use the student visa program to maintain residence in Australia.

26. When I ask you what you intend to do you have provided a range of answers.  In an earlier statement you said “My plan is to have my own luxury car showroom”. In a more recent statement you said: “I have already discussed with my father to start up my own automotive workshop/garage” and then in that same document towards the end you say: “I will also be exploring opportunities to work for some reputed automobile industry in my city or within the State”.

27. The fact you provide a range of inconsistent options you are considering leads the Tribunal to find that you do not have a business plan guiding your studies.  But it seems extraordinary from your statements given what you have also provided is documents from a crowd called Argowal Rajish & Associates who list a wealth statement of your father and it lists moveable assets and liquid assets of 13 lakh 84,000 rupees and immovable assets of 86 lakh 13,000 rupees.

28. And it goes on to break those figures down into Cash in Hand and Jewellery and Cars.  And then it talks about immovable assets and it lists a property and it lists the address of the property, which it says is valued at 86 lakh 13,000 rupees.  That is supported by a document provided by Mayjark Architect Designers, government approved surveyors, designers, interior decorators, estimators, valuers, planners, consultants.  It goes into great detail about this property that it values at 83 lakh.  It refers to this premises that you say is your family home and you say it is a family home that has a health club on the ground floor and three rooms upstairs where the family live.

29. This document says the ground floor is an operating business called Punjab Motor Garage and the first floor contains a business called Punjab Health Club.  It lists assets in those businesses 6,10,000 rupees and 8,45,000 rupees in the health club comprised of gym machines et cetera.  It says the year of construction was 2015.  And when I put that to you , you say “No, no, that is not what is there at all.  That is what we are going to do, that is the plan”.  And, as I said to you, if this is based on a plan it is a fraudulent document.

30. It is not legitimate to provide a document listing the assets of an existing business which lists those assets as gym equipment et cetera and garage equipment if those things do not exist but they are a plan for the future. 

31. If there were no assets but their purchase was planned for the future, then an accurate report would list a significantly increased “Cash in Hand” figure earmarked to purchase those assets but that is not what is recorded. Rather it says the assets already exist in the business.

32. The situation is, as I said, you have completed sufficient studies in Australia to go home and get a job in the automotive industry or start your own business. I do not believe that studying a course of which you have no idea what subjects it covers or how many units you need to pass to complete the course, will provide you with any greater or relevant skills than you have already gained in your previous studies and your work experience having worked as a motor mechanic.

33. So while I acknowledge that you have got family back home, which may provide some incentive to return, you are pretty settled here in Australia.  You have been here now for nearly five years, you have got a reasonably long and strong history of work and while you say it is your intention to return home, you now say you want to stay for another few years.  You words and your actions seem to be different.

34. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia.  It does not believe that you have provided evidence of any incentive to return, which outweighs the issues we have discussed, and your immigration history. 

35. So having considered your circumstances as a whole, including the issues in Direction No. 69, I am not satisfied you are a genuine student who intends to stay temporarily in Australia.  Therefore, I find you do not meet clause 500.212.  It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

36. The Tribunal affirms the decision under review.

    Tim Connellan
    Member