Singh (Migration)

[2018] AATA 3236

Singh (Migration) [2018] AATA 3236 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manjiinder Singh

CASE NUMBER:  1703445

DIBP REFERENCE(S):  BCC2016/3238836

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 July 2018 at 12:46 pm (VIC time)

DATE OF WRITTEN RECORD:                9 July 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 – studied on a visitor visa – VEVO checked – acquired tax file number – vocational courses – no mention of previous visa refusals – inconsistent information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 359
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 8 February 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 5 July 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. 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 29 September 2016 and your application was refused on 8 February 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 the decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

6. To satisfy 500.212 an applicant must be both a genuine student and a genuine temporary entrant.

7. To be a genuine student you must be engaged in and applying yourself to a meaningful programme of study, progressing down an identifiable academic path.

8. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily

9. 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. They were detailed in the primary decision and they include:

   ·Your circumstances

   ·The value of your course/s to your future

   ·Your Immigration history

   ·Your incentive to stay in Australia or return home

   ·If you are using the student visa programme to maintain ongoing residence in Australia

   ·Any other relevant matters

10. This is not meant as a checklist but as a guide for decision-makers in weighing up an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria.

11. 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 you are a genuine student who intends to stay in Australia temporarily.

12. You told the Tribunal you had read and understood the primary decision which we read from and discussed in some detail.

13. The primary decision and its detailed references to the Genuine Temporary Entrant issues in Direction No 69 put your notice of the issues in your case.

14. Given it was the reason you application was refused, with the hearing invitation we advised we would assess whether you met the genuine temporary entrant requirements and asked you to provide a statement addressing the issues in Direction No. 69 and we provided you with a copy of that direction.

15. You provided a statement but it did not address the issues in Direction 69 which I do not believe is the behaviour of a genuine applicant, and when I say to you at today’s hearing what happened, you grin at me and say perhaps you didn’t read it properly, however at today’s hearing you answered a number of questions that went to those issues.

16. In response to a request for evidence of past studies you provided evidence of having completed a 10-week Certificate IV in Business at Australian Education Academy between 15 July 2016 and 27 Sept 2016, and a document dated 20 December 2017 indicating you had completed 8 units as part of a Diploma of Leadership and Management at Brighton Institute of Technology (BIT) a course that was scheduled to be completed in November 2017.

17. In addition to evidence of enrolment in the Diploma of Leadership and Management at BIT you also provided a CoE for an Advanced Diploma of Leadership and Management also at BIT scheduled to run from November 2017 to March 2019.

18. You also provided a CoE for a Certificate III in Light Vehicle Mechanical Technology also at Brighton Institute of Technology scheduled to run from 15 January this year till 30 January next year 2019.

19. You applied for this visa with your enrolments in Leadership and Management stating you wished to gain employment in Marketing.

20. On 21 November 2016 you provided a statement in which you said you plan to open your own small-scale business for which the Leadership and Management courses were valuable

21. You told the Tribunal you came to Australia in July 2016 having successfully completed a Bachelor of Arts at Guru Nanek Dev University in 2012 and having worked as a Marketing Manager for a Co-op.

22. You had also listed your occupation as “farmer” however when sent a list of questions before the hearing pursuant to section 359(2) you did not mention the fact that you had been a farmer. When questioned about that at today’s hearing you simply respond that everybody in the Punjab is a farmer.

23. Having come here supposedly for three months to visit friends and family, a week after arrival you started studying a Certificate IV in Business. The fact that you started studying a week after arriving raises questions as to the purpose of your visit.

24. There are a number of inconsistencies in your evidence that are of concern.

25. Reading from the primary decision, you arrived in Australia on 7 July 2016 on a subclass 600 Tourist visa. On your incoming passenger card you stated you planned to stay for approximately three months and the purpose of your visit was visiting friends or relatives you listed your usual occupation as “farmer”.

26. You subsequently provided a reference from the Hothian Co-Op which states that you were employed as a Marketing Manager cum Cashier from September 2012 to February 2015 selling fertiliser, pesticides and seeds etc.

27. It is noted in the primary decision that you submitted a previous student visa application which was refused in 2013 due to concerns about you not being a genuine temporary entrant. In that application you stated you had worked for a year in a cooperative bank.

28. In a statement you provided recently to the Tribunal you stated “I have also been engaged in employment as I have wanted to utilise my hard earned skills and knowledge for better productivity”. This was in relation to you studying the Certificate III in Automotive Light Vehicle Mechanical Technology. You have today told the Tribunal that you have done no work since being in Australia. When I say these two statements are inconsistent you say that you have gone and watched a friend work. The Tribunal does not believe you are a reliable witness as I do not believe that someone could claim watching a friend work is what they were referring to when they stated “I have also been engaged in employment as I have wanted to utilise my hard earned skills and knowledge for better productivity”.

29. It is further noted in the primary decision you have been VEVO checked since arriving in Australia. These checks are done by employers to ensure an overseas applicant has work rights. In your recent statement in response to those comments you deny having applied for work and stated that you just went out to get your Tax File Number with the intention that when your student visa was granted it would save time and enable you to work part-time while you were studying. VEVO checks are done by employers following an application by an individual for a job to ensure the individual has work rights. The Tribunal does not accept your statement that you have not applied for a job in Australia.

30. As further noted in the primary decision you previously applied for a student visa which was refused in 2013 and yet in the questionnaire previously referred to, sent pursuant to s.359(2) where you were asked to provide details of all previous visa applications you make no mention of that application. When questioned about that today you say that you forgot.

31. The Tribunal believes the inconsistent and conflicting statements in your evidence indicate that you are not a reliable witness.

32. You came here on a tourist visa stating you had come to visit friends or relatives and intending to stay for three months.

33. You started studying within a week of arrival which leads the Tribunal to believe it had always been your intention to study. It’s now two years since you came here for a three months visit and you now say you wish to stay longer.

34. With your visa application you said you wished to study to get a job in marketing. You then said you wanted to study Leadership and Management because they were important to you to enable you to return home and start your own business. You do not complete these studies and when I ask why not, you say because they didn’t really interest you, and now you say you have switched to the study of automotive saying you wish to be a mechanic.

35. At one stage of today’s hearing you said you wish to open your own business, then a short while later you stated that you want to get a job.

36. Your enrolment and study history which we discussed shows you have been enrolled in ELICOS, Bachelor of Business, which you never commenced, Diploma of Leadership and Management, Advanced Diploma of Leadership and Management, also never commenced and now Certificate III in Light Vehicle Mechanical Technology. The Tribunal believes your enrolment and study history is not following an identifiable academic pathway but you are enrolling in and studying short relatively inexpensive courses. The Tribunal believes your motivation is not academic progression but a desire to maintain residence in Australia.

37. You started your first course two years ago, since then the only evidence of completed studies is of a 10 week Certificate IV in Business and eight units in a Diploma of Leadership and Management. The Tribunal does not consider this the progress of a genuine student.

38. When asked why you do not do your intended studies at home your only response is that the Australian system is better.

39. You have a degree from a recognised university in India and now you are studying at the lower Vocational Educational and Training level. When asked about your future plans you talk about opening a business or getting a job.

40. The Tribunal does not believe you have a business plan guiding your studies

41. The Tribunal questions whether your proposed studies, will provide you with greater or relevant skills that you have gained at university or in previous studies or experience

42. While I acknowledge you have family back home, you live here with your brother and his wife. You say your brother came here nine years ago on a student visa but now has a 457 vias, is married and works as a transport manager.

43. While you say it is your intention to return home, having come for a three month holiday and stayed for two years you now seek to remain longer.

44. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history

45. 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.

46. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

47. The Tribunal affirms the decision under review.

    Tim Connellan
    Member