Singh (Migration)

[2018] AATA 4115

Singh (Migration) [2018] AATA 4115 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harsimran Singh

CASE NUMBER:  1710535

HOME AFFAIRS REFERENCE(S):           BCC2017/434636

MEMBER:Mark Bishop

DATE:12 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 12 September 2018 at 11:21am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine applicant for entry and stay as a student – course changes – maintained enrolment in course of study  – worked continuously in Australia –  regular contact with family members – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 375A, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212 Schedule 8 Condition 8202

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 5 May 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 2 February 2017. 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 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 that the applicant intended genuinely to stay temporarily in Australia.

4. The Tribunal resolved the review application on the papers.

5. The applicant provided a copy of the decision record to the Tribunal. The decision record addressed the applicant’s study history, course enrolments and immigration history.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

9. 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?

10. 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.

11. 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.

12. The applicant provided a submission concerning a s.375A Certificate placed on the file by the Department. This Certificate addressed information relating to the date of death of the applicant’s father. The Department was in receipt of information that addressed the validity of the death certificate. The Tribunal has reviewed the relevant death certificate. The Tribunal is satisfied the death certificate provided by the applicant is valid and discloses the correct date of death of the applicant’s father. The Tribunal accepts the applicant’s advice that a previous submission contained an error caused by a typo. For more detail see paragraph 13 hereunder.

13. The applicant provided a brief GTE statement to the Department. It outlined the following:

    ·The applicant came to Australia to study a Bachelor of Information Technology. He stated he did well in his first semester. He provided course transcripts for the following semesters:

    o   Semester 1 2014 not provided;

    o   Semester 2 2014 pass in one subject and credit in two subjects. Grade of MF in fourth subject;

    o   Semester 1 2015 pass in one subject and grade of MF in three subjects;

    o   Semester 2 2015 no grades

    ·At the start of his second semester he found out his father was ill and felt under stress. He advised he father passed away on 15 September 2015.

    In a later submission to the Tribunal the applicant stated 2015 was a typo and in fact his father passed away in September 2014. The applicant provided a death certificate to this effect. The Tribunal finds the applicant’s father passed away in September 2014.

    ·The applicant decided IT was not for him and decided to change his career to a Diploma of Automotive leading to a Bachelor of Business. The applicant advised he was progressing well in his certificate level courses. He provided the following supporting documentation:

    oCompletion letter, course transcript, and Graduation Certificate in Certificate III in Light Vehicle Mechanical Technology in the period October 2015 until November 2016;

    oCompletion letter, course transcript, and Graduation Certificate in Certificate IV in Automotive Mechanical Diagnosis in the period November 2016 until March 2017

    ·The applicant advised the automotive industry was moving out of Australia and expanding rapidly in India;

    ·The applicant’s immediate family live in India. His family has a very big house in one of the best localities in Amritsar. He grew up in an environment where the family business was related to cars

14. In a statement provided to the Department (Df: 56) the applicant advised he worked continuously in Hungry Jacks from 8 October 2014 until 18 February 2017. He advised he worked as a car mechanic in college holidays with key responsibilities of servicing cars, smart repair, removing transmissions, replacing oil and oil filters, inspecting of timing and hoses, testing batteries and cooling systems and washing cars.

15. The applicant has resided in Australia as the holder of a Bridging visa A since 13 February 2017 with full study rights and limited work rights

16. The applicant provided a GTE statement to the Tribunal that outlined the following:

    ·He arrived in Australia on 19 October 2013 as the holder of a TU-573 visa for study in the Higher Education (HE) sector;

    ·He deferred his enrolment from November 2013 until June 2014 because of the death of a close family member, returned to India for this period and resumed his studies in Australia in semester 2 June 2014;

    ·In September 2014 his father passed away and he provided a copy of the death certificate;

    ·He attended classes during 2015, his results were poor and he decided to pursue an alternate career;

    ·He has now completed three VET courses up to Diploma level in fields associated with automotive;

    ·He Addressed in considerable detail relevant aspects of Ministerial Direction Number 69 (MD69);

    ·He provided proof of deferment applications and grants of same from the University of Ballarat;

    ·He provided copies of a completion letter, course transcript and Graduation Certificate for a Diploma of Automotive Technology in the period 9 March 2017 until 30 November 2017.

17. The applicant provided a submission prepared by his legal advisors. This submission addressed the following:

    ·Validity of a s.375A Certificate attached to the Departmental file;

    ·Academic background of the applicant including decision to withdraw from study in a Bachelor of Information Technology and pursue VET level studies in the Automotive field;

    ·Delegate’s reasons for refusal;

    ·Supposition held by the Department not put to the applicant;

    ·Death of applicant’s father and incorrect date of death provided by way of typo.

    The Tribunal has previously addressed this issue in paragraph 12 above.

    ·Provision of a Confirmation of Enrolment (COE) for a Bachelor of Business;

    ·Relevant aspects of MD69;

18. The Tribunal finds the applicant came to Australia in October 2013 as the holder of a TU-573 student visa. Such visa requires the holder to enrol in and remain enrolled in an approved course in the HE sector. The applicant enrolled in a Bachelor of Information Technology for a period of two years, had some authorised deferments due to the death of his father, returned to India for a six month period, remained enrolled in the Bachelor degree until the end of 2015, attended classes, had poor results in his last two semesters of enrolment, determined to pursue an alternate career in the automotive field,  enrolled in a set of courses in the VET sector, was in breach of  conditions attached to his TU-573 visa from late 2015/early 2016 until early 2017, has been engaged in continuous employment in Australia from October 2014 until at least 2017, has completed three VET  level courses since early 2016, has been continuously engaged in study or on authorised deferment leave from early 2014 until the present time  and has part completed a Bachelor of Business.

    Ministerial Direction Number 69

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

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

21. The applicant advised his mother and girlfriend of nine years lived in India. He communicates regularly with them. He advised he communicates with them daily often on multiple occasions. His MA advised he visited them regularly. In a written response to a request for information under s.359(2) of the Migration Act the applicant advised he had visited India on three occasions since 2013. The first occasion was a lengthy visit of seven months primarily occasioned by the severe illness of his father. The other two occasions were in January 2016 and January 2018 during school holidays. In a GTE statement to the Tribunal the applicant confirmed he had only visited India on these occasions. In a GTE statement to the Department the applicant advised his extended family lived in a well to do suburb in his home country. The applicant did not advise of any community engagement or community links to India.

22. The Tribunal has considered all this information. The Tribunal notes the applicant highlights his regular contact with family and a long standing girl-friend in India. He did not advise of the nature of that relationship with her. He did not provide any evidence of the relationship. He did not provide copies of notes, cards, letters, pictures, texts, social media exchanges or similar memorabilia that are generally a feature of long distance relationships. He did not advise of an engagement or intended marriage. He did not advise his girl-friend had visited him in Australia. He did not advise his extended family (mother, grandparents, uncles and aunts all living in Amritsar, India) had visited him in Australia.

23. The only evidence before the Tribunal is the existence of an extended family and alleged girlfriend in India. The Tribunal is unable to conclude the applicant’s personal ties serve as a significant incentive to return to India.

24. The applicant did not address cl.9(d) and (e) of MD69. Hence the Tribunal is unable to reach a conclusion on these paragraphs.

25. The applicant addressed cl.9(c) of MD69 in passing. He advised his family lived in a large house, in a wealthy suburb in a major town in India. He did not provide detail of family assets, the likelihood of employment in a family company or of economic circumstances that present as a significant incentive to return home to India. He advised of family interest in the automotive industry and his desire to work in a mechanical workshop prior to opening his own enterprise. He did not provide a business plan or financial data relating to this possible enterprise. He provided some general commentary as to location of a possible enterprise and potential competitive advantages in a niche market. He advised his living expenses would be much lower in India than in Australia.

26. The Tribunal is unable to conclude the applicant’s circumstances in India present as a significant incentive to return to India.

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

28. The applicant advised of an uncle living in Melbourne whom he sees semi-regularly. The Tribunal notes this semi regularly visit to family in Australia is much more than visits to family and girl-friend in India. The applicant advised he had held consistent enrolment in a Bachelor course since his arrival in Australia in October 2013. He submitted there is no evidence before the Tribunal that he is using the student visa program to circumvent the intentions of the migration or student program.

29. This assertion is not quite correct. The applicant enrolled in a Bachelor of IT from November 2013 until December 2015. The first seven months of that course the applicant was on authorised leave of absence. Thereafter from July 2014 until December 2015 he was enrolled in the Bachelor of IT. His results were generally poor. He withdrew from the Bachelor of IT course in December 2015 and pursued study in three courses in the VET from October 2015 until April 2018. Thereafter and from April 2018 he enrolled in and is currently studying a Bachelor of Business. He provided a COE to the Tribunal that showed he enrolled in the Bachelor course on 22 August 2018. It is correct to say the applicant has been constantly enrolled in courses in the VET and HE sectors since October 2013 until the present time.  It is not correct to say the applicant has “…consistently held enrolment in a Bachelor course since he first arrived in Australia.”

30. The applicant advised the current application for a student visa is the only student visa the applicant has applied for while in Australia. This assertion is technically correct. It ignores the fact the applicant applied offshore for a TU-573 student visa on 21 August 2013 to study in the HE sector in Australia and remained in Australia until 10 February 2017 as the holder of such student visa. It is correct to say the applicant has applied for two student visas both offshore and onshore. It is correct to say one visa application was granted. It is correct to say the second student visa application was refused.

31. The applicant is a male person. The submission of the MA for the applicant refers to the applicant as “she” and “her”. The Tribunal is not aware whether these are simply typographical mistakes or result from a “cut and paste” from other submissions.  

32. The applicant advised he had financial support from an uncle resident in Australia. He advised in a written response to a request for student visa information under s.359(2) of the Migration Act he had worked continuously in Australia earning a solid income of in excess of approximately $25,000 per annum from July 2014 until the present time supplemented by second jobs for many years that result in further income of between $10,000 and $20,000 per annum.

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

34. The applicant submitted he intended to open his own workshop in India. He advised the skills he had learned and will learn in the Bachelor of Business degree would assist to differentiate his business from other similar business in the area. In the previous paragraph of his submission he advised “as of now my plan is to open a workshop on Loharka Road in Amritsar in Punjab, where I lived in India and where my family is from. I have chosen this area as it is a new locality and there are no established workshops there”. The MA for the applicant repeated this assertion in a second submission to the Tribunal. The Tribunal notes this inconsistency.

35. The MA for the applicant submitted the applicant’s study and education history demonstrated that the Bachelor of Business Management is the next logical step in his development in the automotive industry and his career goals. The Tribunal does not accept this submission. It is not apparent to the Tribunal that a Business Management degree has any relevance to a man returning to his home country planning to gain experience as a mechanic in India as a precursor to possibly opening his own enterprise in the future and working in that enterprise as a mechanic, albeit also as owner of the enterprise. At this stage the Tribunal does not need to make a finding on this point. Similarly the Tribunal is not convinced there is much utility in studying aspects of the automotive industry in Australia when that industry is closing down in Australia to a significant extent. The Tribunal is troubled that an Indian national would leave his home country that has a large advanced expanding and developed automotive manufacturing industry to engage in study in Australia in a field that is at best a remnant industry created from redundant industry policy in the second half of the 20^th century. At this stage the Tribunal does not have to make a finding on this point.

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

37. The applicant entered Australia as the holder of a TU-573 visa. Condition 8202 was attached to the visa. Condition 8202 requires the holder of that visa to enrol in and remain enrolled in an approved course in the HE sector. From late 2015 until February 2017 the applicant was enrolled in courses in the VET sector. The applicant did not advise he had contacted the Department and informed them of his change of enrolment from the HE sector to the VET sector. The applicant did not advise the Tribunal he had sought a change of his visa to accommodate this change in study plans.

38. The Tribunal finds the applicant was in breach of condition 8202 attached to his TU-573 visa in the period late 205 until February 2017.

1. The Tribunal has given consideration to the material outlined above and conclusions outlined in paragraph 18 to 38 above. The applicant’s submissions are replete with inaccuracies, inconsistencies, false conclusions and sometime deliberately ignore inconvenient facts. However the applicant has provided plausible explanations for his study progress in Australia. He has provided documentary evidence that explains legitimate absence for lengthy period study. At all times the applicant has maintained enrolment in course of study. The applicant has followed a consistent study path that most likely will lead to a career in India.

2. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

3. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

5. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl.500.212 of Schedule 2 to the Regulations.

   Mark Bishop
   Member