SINGH (Migration)

[2018] AATA 1671

SINGH (Migration) [2018] AATA 1671 (20 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RANVIR SINGH

CASE NUMBER:  1620078

DIBP REFERENCE(S):  BCC2016/2372594

MEMBER:Stephen Witts

DATE:20 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2018 at 2:59pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant  – Low level VET courses – Ability to maintain personal relationships – Study pattern – Lack of course completion – Future  plans – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 500.212

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 on 23 November 2016 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 15 July 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 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 genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 11 April 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 whether the applicant intends to stay in Australia temporarily.

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

7. 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?

   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.

8. 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.

9. At the hearing the Tribunal had a discussion with the applicant regarding the considerations laid out in Ministerial Direction 69.

   Background

10. The applicant arrived in Australia from India on 24 January 2009 after being granted an initial student visa TU 572 offshore on 12 January 2009. Since the applicant’s initial arrival onshore he has held a student visa, a skilled graduate visa or associated bridging visa and has been residing in Australia as a holder of a student visa for more than eight years.

11. Since arriving in Australia the applicant has completed a Certificate III in Food Processing, completed on 24 November 2009 and a Diploma of Business, completed on 14 December 2011.

12. According to the applicant since coming to Australia the applicant has been enrolled in the following courses: a Certificate III in Food Processing, as above, a Diploma of Business, as above, an Advanced Diploma of Management, a Bachelor of Commerce (Accounting) which he enrolled in three times, a Certificate III in Commercial Cookery, an Advanced Diploma of Management, a Certificate IV in Commercial Cookery, an Advanced Diploma of Leadership and Management, a Diploma of Hospitality, a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, and a Diploma of Hospitality. All of these courses were never finished.

13. The applicant is currently enrolled in a Diploma of Leadership and Management which began on 26 March 2018 and is due for completion on 24 March 2019 and a Certificate IV in Commercial Cookery which began on 26 February 2018 and is due for completion on 26 August 2018.

14. On 23 November 2016 the delegate refused the applicant’s application for a student visa. The delegate’s decision stated that the applicant had been enrolling in new courses for the purposes of securing a further student visa rather than due to a genuine interest in study and overall academic progress. The delegate also contended that the applicant’s last student visa (TEU 573) was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of a visa which includes a current offer of enrolment in a principal course. The delegate stated that this condition had not been met. The delegate did not refer to any other visa breaches. The Tribunal is concerned though that the applicant has chosen to study low level VET courses except for a Bachelor of Commerce (Accounting) which the applicant enrolled in 3 times without completion.

15. The Genuine Temporary Entrant criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 69.

    Circumstances in home country

16. The applicant stated that he finished secondary school back in his home country in 2007 and did not have any other formal qualifications when he decided to come to Australia to study. When asked why he did not study in his own country he indicated that he thought the institutions were of a better quality in Australia. The Tribunal does not consider this evidence to be adverse to the applicant.

17. The applicant stated that he has a mother and father back at home and that he was an only son with one sister in Canada. He stated that his father was ex-military, owned a farm and a plumbing sanitary business. He stated that he speaks on the phone to his family every day and has no trouble staying in contact or maintaining his personal relationships from Australia. The tribunal is concerned that this indicates an incentive to not remain temporarily in Australia.

18. The applicant stated that his family owned significant property back in his home country and that that constituted an incentive to cease residence in Australia. Property overseas is readily sold for cash, or indeed, is never sold and may instead produce income in the form of rent. The holding of such properties is not an incentive to cease residence in Australia. The Tribunal finds in this case this was not an incentive for the applicant to cease residence in Australia.

19. The applicant stated that he had no concerns regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic and cultural circumstances in the home country, civil unrest in the home country, or the applicant’s circumstances in the home country relative to others in that country.

    Circumstances and study in Australia, and the value of the course to the applicant’s future

20. The applicant stated that he has been home four times since January 2009 and that he has not travelled to any other locations outside Australia. The tribunal is concerned that the fact that the applicant has only returned home sporadically and further, as stated, that he was having no problems maintaining these personal relationships back in his home country from Australia indicates an incentive to not remain temporarily in Australia.

21. The applicant indicated that he currently rents in Coffs Harbour New South Wales where he moved six months ago.

22. The applicant stated that he works as an assistant in Bushman’s Bakery for 20 hours a week and earns $500 AUD per week. He stated that his father pays 80% of his study fees. The Tribunal finds that this earning capacity is a significant incentive to not remain temporarily in Australia. The earnings from this work here in Australia are far higher than for comparable work back in the applicant’s home country. The Tribunal also considers that the economic disparity between India and Australia is a real incentive for the applicant to remain in Australia.

23. In his GTE statement to the delegate dated 14 November 2016 the applicant indicated that he was always interested in studying cookery. He also stated that his current study of a Diploma of Leadership and Management will assist him in setting up a business back in India. The applicant did not elaborate any further how this course would assist him in the future and he did not address adequately his poor study record with these courses cancelled. The applicant also referred to other courses, such as a Diploma of Hospitality, which he explained was an important part of his study plan to take the necessary skills back home to start a business. The Tribunal is concerned that subsequent to this the applicant did not complete this course. The Tribunal finds that this indicates that the applicant does not intend to reside in Australia temporarily.

24. When asked by the Tribunal why he now intends to do a Diploma of Leadership and Management and how this would assist him in opening a bakery or food-processing business back at home the applicant was unable to demonstrate how his continued study would assist him in starting his business back in his home country. The Tribunal finds that the applicant’s stated intention of finishing study and returning home to start a bakery and food-processing business was not outlined in a coherent manner in his statement or in his evidence. The tribunal is concerned that this does not demonstrate a desire to remain in Australia temporarily.

25. The tribunal is concerned that the study pattern chosen by the applicant during his time here in Australia is not consistent with a genuine student who intends to reside in Australia temporarily. The applicant could not adequately explain his poor study record where he was enrolled in at least 14 courses and only completed one. The applicant could also not explain why he had attempted a Bachelor of Commerce (Accounting) on three occasions before changing again back to low-level VET courses which were also uncompleted other than a reference to relationship issues. No other specific evidence was provided by the applicant regarding his lack of course completion. The Tribunal was concerned that this explanation was not adequate to explain the applicant’s study and lack of course completion here over a period of several years.

26. For the reasons above, the Tribunal finds that an applicant intent upon making a temporary stay to acquire skills for a future plan outside Australia, and having personal and other incentives to leave Australia, would have, in the significant amount of time in question, almost 10 years, achieved the skills, knowledge and qualifications reasonably necessary for that plan by now and would have made the departure contemplated by a temporary stay to study in Australia.

27. Instead, the applicant proposes yet further stay and study, a Diploma of Leadership and Management, which has the effect of prolonging an already significant stay in Australia, prolonging the applicant’s separation from personal ties in the home country, and incurring significant additional expenses in the form of tuition fees and living costs.

28. 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).

    Conclusion on cl.500.212

29. Accordingly, 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.

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

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

    Stephen Witts
    Member