Singh (Migration)

[2018] AATA 1145

Singh (Migration) [2018] AATA 1145 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gur Charan Singh

CASE NUMBER:  1717697

DIBP REFERENCE(S):  BCC2016/1691507

MEMBER:Richard West

DATE:4 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 04 April 2018 at 10:34am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Conflicting statements about study plans – Completed several courses – Works casually in Australia – Did not provide the Tribunal with detailed evidence of his job offer in India – No genuine entrant

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cl 572.223 Schedule 8 Condition 8516

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 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 10 May 2016. The delegate decided to refuse to grant the visa on 28 July 2017. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl. 572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant genuinely intended to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 22 March 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. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572 Vocational Education and Training Sector.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

8. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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 to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. The applicant is an Indian national.  He first entered Australia on 25 June 2009 having been granted a Student Class TU 572 visa off shore on 1 June 2009.  The visa was valid until 30 August 2011.  Since arrival the primary applicant has held either a student visa or associated bridging visa.  The delegate has noted in their decision that the applicant had been granted a TU 572 visa on 7 April 2014 which was valid until 11 May 2016 and he had failed to maintain enrolment in his principal course of study during the period of the visa from 19 December 2014 in breach of visa condition 8516. The Tribunal is not aware of any other evidence that the primary applicant has not complied with his visa conditions since arrival in Australia. 

11. In the course of the hearing the applicant was advised in accordance with s.359AA of the Migration Act that the Tribunal intended to put information to the applicant that without explanation was something that the Tribunal considered would be a reason, or part of the reason for affirming the decision under review. The information was the applicant’s Provider Registration and International Student Management System (PRISMS) record. It was explained to the applicant that the information was relevant to the review because it may lead the Tribunal to form the view that it documents a long history of unrelated courses, courses that were not started or that were started and shortly after cancelled and that the consequences of the information being relied on may be that the Tribunal formed the view that the applicant is not a genuine student and his visa should be refused. The applicant was given a copy of the PRISMS record and an opportunity to read through it and offered additional time before responding to the document and the Tribunal’s questions related to it.

12. The applicant produced to the Tribunal certificates evidencing the completion of courses in Advanced Diploma of Engineering Technology, Diploma of Management, Diploma of Business, Certificate III in Light Vehicle Mechanical Technology and Certificate IV in Automotive Mechanical Diagnosis.

13. On the basis of the documents produced by the applicant and his answers to questions regarding the PRISMS record the Tribunal finds that the applicant’s study history while in Australia is:

    ·    the applicant completed an Advanced Diploma of Engineering Technology from 13 July 2009 to 30 June 2011;

    ·    the applicant completed a Diploma of Management from 1 August 2011 to 30 March 2012;

    ·    the applicant completed a Diploma of Business from 1 April 2012 to 30 September 2012;

    ·    the applicant completed a Diploma of Automotive Management from 12 November 2012 to 5 January 2014;

    ·    the applicant enrolled in a suite of courses comprising a Certificate III in Automotive Electrical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology to commence on 11 March 2014 but the enrolment was cancelled on 19 December 2014;

    ·    the applicant completed a Certificate III in Light Vehicle Mechanical Technology from 17 May 2016 to 14 June 2017; and

    ·    the applicant completed a Certificate IV in Automotive Mechanical Diagnosis from 28 June 2017 to 18 December 2017.

14. The applicant produced to the Tribunal a certificate of enrolment confirming that he is currently enrolled in a Diploma of Automotive Technology at Acumen Institute of Further Education commencing on 10 February 2018 and concluding on 10 November 2018.

15. The applicant gave evidence regarding his reasons for undertaking these courses.

16. He stated that he initially undertook the Advanced Diploma of Engineering Technology course to get some basic knowledge of engineering and his studies included computer programming and computer controlled machinery. 

17. He stated in evidence that in 2011, at the conclusion of the Advanced Diploma course, he decided that he would like to pursue a career in the automotive field.  The Tribunal referred the applicant to the statement he had made to the delegate on 13 June 2017 in his letter explaining the genuine temporary entrant criterion that he had come to Australia to gain further knowledge and skills in the field of automotive and that he had always been interested in work in the field of motor mechanics. After a long pause the applicant said he was unable to offer an explanation for these conflicting statements. 

18. The Tribunal also questioned the applicant as to why he had then pursued three diploma courses in business and management when he had decided to pursue a career in automotive. The applicant stated that he wanted to get a basic idea of business and management before studying automotive courses.  He pointed out that the Diploma of Automotive Management was focussed on the automotive industry.

19. The applicant was then asked to explain why he had enrolled in but not completed the suite of courses in automotive technology for which he had enrolled in March 2014.  The applicant paused for several minutes before responding and stated that he had attended the Certificate III course for a ‘couple of months’ but had a car accident in the middle of 2015 and had been unwell afterwards.  The Tribunal referred him to the delegate’s decision where the delegate had noted that the applicant had failed to respond to an invitation to explain why he had not undertaken any study for 26 months from 11 March 2014 to 17 May 2016. The applicant paused for several minutes before responding. The applicant acknowledged that he had not told the Department or the College about the accident.  He said that he had approached the receptionist at the College after his enrolment was cancelled but she had said that the College ‘can’t do much about’ the cancellation of his certificate of enrolment.

20. The applicant gave evidence that during the 26 month period between 11 March 2014 to 17 May 2016 he was affected by the car accident for a ‘couple of months’ and then he had worked at a few casual jobs as a cleaner that he sourced from Gumtree.  He stated that he didn’t know what to do about his enrolment and wasn’t sure what to say to the Department or the College. He admitted that he did not seek any advice during this period.

21. The applicant stated that he finally renewed his enrolment in the Certificate III and IV automotive courses in May 2016 after being referred by a friend to an agent who assisted him to get enrolled.  The Tribunal notes that this enrolment was the day after the applicant applied for a student visa.

22. The applicant’s attention was drawn to the statement he had made to the delegate on 13 June 2017 in his letter explaining the genuine temporary entrant criterion that he intended to return to India to pursue a career in automotive once he had completed the Certificate IV course for which he was then enrolled.  The Tribunal asked the applicant to explain why he had not done what he had told the delegate he would do, but instead had enrolled in a further diploma course.  The applicant stated that the decision to enrol in the diploma course was made after he completed the Certificate IV and that it would assist him to solve complex problems.  Again the applicant’s response was punctuated by a long pause.

23. The Tribunal is not satisfied that the applicant’s overall response is reliable.  The applicant’s answers to questions were punctuated by long pauses which indicated that he did not know the answer to, or was not prepared to answer, fairly straightforward questions.  He produced no corroborating evidence as to his car accident and subsequent medical issues in 2015 to the delegate, the college or to the Tribunal.  He failed to reconcile conflicting statements made in evidence to the Tribunal and in statements to the delegate.  He chose not to provide an explanation to the delegate for not having studied for some 26 months during 2014/2016 and the explanation he gave in evidence to the Tribunal was unconvincing.  His avowed interest in a career in the automotive field is difficult to reconcile with the fact that he did not actually commence to seriously study in the area until May 2016, almost 7 years after he arrived in Australia. The Tribunal also notes that his enrolment in the Certificate III and IV automotive courses, after 26 months of inactivity, coincided with the date of his application for a Student TU 572 visa.  The Tribunal is also not convinced by the applicant’s explanation for undertaking three diploma courses in business and management before commencing any study in what he claimed is his chosen field of study.  The credibility of the applicant’s explanation for doing the diploma courses is further undermined by his evidence that he now intends to return to India to take up an offer of employment with Mr Bali as a light vehicle mechanic.  This offer was made on the basis only that the applicant would first complete the Certificate III and IV automotive courses and does not require him to also complete a diploma course.  Further, the position offered requires only technical skills. 

24. Having regard to the applicant’s evidence and the reservations expressed above the Tribunal is not satisfied that the applicant has undertaken a genuine course of study for the purpose of enhancing his career and it concludes that the applicant has enrolled in a series of courses for the purpose of maintaining ongoing residence in Australia contrary to the intention of the student visa system.   The Tribunal attaches significant weight to this factor.

25. Direction 53 requires the Tribunal to consider whether the primary applicant’s ties to his homeland provide an incentive for him to return and whether his ties to Australia provide an incentive for him to remain in Australia.  The primary applicant gave evidence about both matters. 

26. The applicant gave evidence that his principal tie to his home country is his family and his responsibility to return home to look after his mother and father.  He also said that he has a younger sister who is in secondary school. While the Tribunal accepts that the applicant’s family does provide a tie to his home country it doubts that this tie is sufficient to provide a significant incentive for him to return. First, the applicant gave evidence that his father has an adequate source of income of a kind that does not require his personal exertion.  He owns two Uber vehicles, has several rental properties and is a shareholder in a family company.  In addition the applicant has not demonstrated a strong attachment to his family in India.  He confirmed in his evidence that he has only returned to his home county twice since he arrived in Australia in 2009, in 2009 for a 3 month break and in 2012 for ‘about 10 days’.

27. The applicant also referred to the prospect of employment in India as an incentive for him to return.  He referred to a letter dated 2 June 2017 confirming an offer of employment for him with Bali Motor Garage in Jalandhar.  The applicant indicated that the letter was issued by a Mr Bali, the owner of the business, who had done so at the request of the applicant’s father. The applicant confirmed that he had not spoken to Mr Bali in relation to the offer nor had he discussed his decision to undertake the Diploma of Automotive Technology course which was not in the contemplation of Mr Bali when he made the offer.  While the Tribunal has no reason to doubt the authenticity of the offer the terms and conditions on which the offer is made are not articulated in the letter and the applicant was unable to clarify them.  At best the Bali offer is an uncertain basis for the applicant’s return to his home country and the Tribunal gives it little weight in assessing what factors may provide an incentive for the applicant to return to his home country.

28. The applicant gave evidence about his ties to Australia.  He has been in Australia for almost 9 years.  He said has enjoyed living in Melbourne which is a very liveable city. His sister lives in Melbourne. She is a student. He has friends in Australia and lives in a shared unit.  He acknowledged in his evidence that he found it better living with friends than family.  He has a regular part-time position as a console operator at a service station and has previously worked as a casual cleaner.

29. On balance the Tribunal is not satisfied that the applicant’s ties to India are sufficiently strong to provide an incentive for the applicant to return to his home country.  His ties to Australia suggest that he has a comfortable life here and this provides an incentive for him to stay in Australia.

30. Direction 53 requires the Tribunal to have regard to whether the student is undertaking a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country.  The applicant did not provide any justification for undertaking his current course of study other than a general assertion about the availability of employment in India in the automotive field.  He stated in evidence that he intends to return to India after completing his current course to take up the position with Bali Motor Garage. While the Tribunal is satisfied in a general sense that the applicant’s area of study will assist his employment prospects in his home country the lack of detailed consideration of the issue by the applicant leads the Tribunal to put little weight on this factor in assessing whether the applicant is a genuine temporary entrant.

31. The Tribunal has considered the economic circumstances of the applicant and the remuneration the applicant could expect to receive in Australia and in India.  He currently has a part time job as a console operator in Australia and prospects of a position as a light vehicle mechanic in India. The Tribunal accepts that the wages the applicant could earn in Australia may exceed those in India for these positions but the economic circumstances depend on other factors such as the financial benefit the applicant may receive from family support and the differences in the cost of living between the two countries.  The Tribunal does not have sufficient evidence to make a meaningful quantitative comparison between the primary applicant’s economic circumstances in Australia and India.  Accordingly the Tribunal gives little weight to these factors. 

32. There are no issues of military service or civil unrest relevant to the applicant’s circumstances.

33. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

34. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

   Richard West
   Member