Singh (Migration)

[2018] AATA 1392

Singh (Migration) [2018] AATA 1392 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Simran Deep Singh

CASE NUMBER:  1619534

DIBP REFERENCE(S):  BCC2016/2846013

MEMBER:Stephen Witts

DATE:11 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 11 April 2018 at 1:11pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Subclass 573 (Higher Education Level) visa cancelled – Significant changes in career orientation – No link between current course and career plan – Incentives to remain in Australia – Improved remuneration –Sister in Australia – Attempt to maintain ongoing residential status

LEGISLATION
Migration Act 1958, s 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 8 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 27 August 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 6 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vikram Singh and Ms Chandi Gari, friends of the applicant.

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?

8. 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.

9. 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.

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

    Background

11. The applicant first arrived in Australia from India on a student visa (TU 573) in July 2013. The applicant was granted this TU 573 visa from offshore to study a Higher Education level course, a Bachelor of Information Technology, which was cancelled on 11 December 2013. The delegate noted in its decision that the applicant has not continued studying at TU 573 level and has therefore been in breach of student visa condition 8516.

12. After leaving this course after a few weeks the applicant commenced a Certificate III in Automotive Technology in January 2014 which he also left without qualifying. There was then a period of more than nine months, as noted by the delegate, where no study took place. The applicant did not then study until 16 March 2015 where he enrolled in and completed a Certificate III in Light Mechanical Technology. He then studied a Certificate IV in Automotive Diagnosis which was completed on 10 November 2016 followed by a Diploma of Automotive Technology which was completed in October 2017. The applicant is now studying a Bachelor of Business which began on 20 November 2017 and is due for completion on 30 June 2020.

13. 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

14. The applicant completed high school back in his home country and then went on to study and complete a Diploma in IT Hardware and Networking. He then went on to develop a career in IT for a number of years before deciding to undertake courses of study in Australia.

15. In his evidence before the Tribunal and in his GTE statement to the Tribunal the applicant stated that his salary at $300 AUD per month back in India was not adequate for his future. On this basis he decided to come to Australia to seek more qualifications. The reasons he gave for studying in Australia was also that the quality of education was better because of its international perspective.

16. The applicant stated that he has a grandfather; grandmother, mother, and other relatives back in India and has no trouble remaining in contact via phone and Internet. He indicated that he was not having any problems maintaining his personal relationships back in his home country. He also has a sister in New Zealand. The Tribunal is concerned that these factors constitute a reason to remain in Australia permanently.

17. The applicant did not indicate that there was any relevant evidence regarding the following factors indicated by Ministerial Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service, or economic or political circumstances in the home country, or any other circumstances in the home country relative to Australia or any other country.

18. The applicant stated that he doesn’t own any property back in India but that he may one day inherit his grandfather’s farm. As property overseas is readily sold for cash or may never be sold and may instead produce income in the form of rent the Tribunal finds that the ownership of such property is not an effective incentive to cease residence in Australia.

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

19. The applicant stated that since his arrival on 8 July 2013 he has never been back to his home country. He also indicated that he had not travelled to other countries. The tribunal is concerned that the fact that the applicant has never returned home and further that he stated he was having no problems maintaining his personal relationships back in his home country, indicates an incentive to not remain temporarily in Australia.

20. The applicant stated that he rents in Sunshine with friends.

21. The applicant testified that he was working in an industrial cleaning business for between 17 to 20 hours a week and was currently earning $340 AUD per week.

22. The applicant stated that he has a sister in Brisbane and that his sister was assisting him in paying for his studies. The tribunal is concerned that this is an incentive for the applicant to remain in Australia.

23. In his oral evidence to the Tribunal the applicant’s friend, Mr Vikram Singh, testified that the applicant had been studying hard recently and that he deserved a chance. The Tribunal does not consider that this evidence was adverse to the applicant.

24. In her oral evidence to the Tribunal the applicant’s friend Ms Chandi Gari testified to the Tribunal that the applicant was a good student. The Tribunal does not consider this evidence adverse to the applicant.

25. In his GTE statement to the Tribunal and in his statement to the delegate dated 6 October 2016 the applicant stated that he wished to come to Australia and study automotive technology because he was interested in opening an automotive business back in India. When asked by the Tribunal why he made a career change from IT back at home to studying automotive technology in Australia the applicant indicated that he had an interest in cars, his father owned a car, and that cars are now more technical than mechanical. The Tribunal was concerned that the reasons given by the applicant to change his career trajectory from IT networking to automotive were not carefully thought out or logical and that this indicated a desire to continue to study in Australia to maintain residence here. The Tribunal is not persuaded that the applicant genuinely decided to abandon his original IT career to retrain in automotive technology.

26. When asked by the Tribunal the reasons why he now wanted to study for a Bachelor of Business in Australia rather than back in his home country he indicated that such study here in Australia offered good management and marketing insights and an international perspective. The Tribunal was concerned that the applicant could not link this to his proposed automotive workshop business plan back in India. The Tribunal was also concerned by the applicant’s significant changes in career orientation. The applicant had obtained an IT qualification back in India and then worked for a number of years in this professional field. He then decided that he wanted to make a change to automotive technology and after a false start and a nine month gap in study he then achieved qualifications in automotive technology. He stated to the delegate at that time that he would consider going back to India to open an automotive business or mechanical workshop. He then testified that his current study, a Bachelor of Business, would also assist him back in his home country by providing him with an international perspective in management and marketing laws. The Tribunal is concerned that there was no real link between the applicant’s desire to work back in the automotive sector in India and to achieving such general qualifications in business in Australia.

27. The Tribunal is concerned that the applicant has made major changes to his study often in circumstances where courses have been cancelled. Specifically the Tribunal is concerned that the applicant had qualifications and a career back in India and then gave these up for a completely different career trajectory in automotive and mechanical engineering and did not offer a convincing rationale for these changes. The Tribunal was also concerned that after having studied and obtained qualifications in automotive technology the applicant then did not return home at the end of 2017 when he finished his Diploma of Automotive Technology and after having completed two certificates in the same discipline and open up the business in this area that he talked about in his statement to the Tribunal. The Tribunal finds that this would have been the appropriate time for the applicant to return home and pursue his stated career goals. The Tribunal is also concerned that the applicant then went on to begin a Bachelor level business course in November 2017 which is not due for completion until June 2020 without being able to explain in real terms the value of this qualification to his stated objectives.

28. The applicant also indicated in his statement to the Tribunal, and in evidence, that the reasons for his study record being poor were that he was depressed about his circumstances here and that his sister had gone to live in Brisbane. No other specific evidence was put before the Tribunal in regard to this matter and the Tribunal is concerned that these explanations are inadequate.

29. The Tribunal is also concerned by the statement made by the applicant that he came to Australia because he sought to improve his remuneration from what it was back in India. He stated that he was earning $300 AUD per month back home but that he was now earning $340 AUD per week in Australia in an industrial cleaning business. The Tribunal finds that this is a very significant incentive to not remain temporarily in Australia.

30. The fact that the applicant instead proposes further study indicates to the Tribunal that the applicant’s intention is not to stay temporarily in Australia. It is the Tribunal’s view at the applicant’s main purpose of being granted a further student Visa is to maintain ongoing residence in Australia.

31. The Tribunal has significant concern of the value of the course the applicant has recently started does not lie outside Australia, but in the granting of further student visas for the purposes of continued residence in Australia. The Tribunal has little confidence that the current course will be completed and has little confidence that the applicant will remain in Australia temporarily.

32. 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 the requirements cl.500.212 (a).

    Conclusion on cl.500.212

33. 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.

34. 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

    .

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

    Stephen Witts
    Member