Singh (Migration)

[2018] AATA 597

Singh (Migration) [2018] AATA 597 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhupinder Singh

CASE NUMBER:  1615772

DIBP REFERENCE(S):  BCC2016/1658468

MEMBER:Penelope Hunter

DATE:7 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2018 at 10:03am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether applicant genuinely intends to stay in Australia temporarily – Limited academic progress – Multiple inexpensive short courses undertaken – Current studies of limited benefit – Significant time already spent in Australia

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223(1)(e)

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 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 to the Department of Immigration for the visa on 6 May 2016.

3. The delegate decided to refuse to grant the visa on 9 September 2016. 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).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student.

5. The applicant appeared before the Tribunal via video conference from Perth, on 5 February 2018, to give evidence and present arguments. 

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CLAIMS AND EVIDENCE

8. The applicant is a citizen of India and first arrived in Australia in December 2007. The applicant was educated to senior secondary school (year 12) in India on 8 December 2007.

9. In Australia he has completed studies in a Certificate IV in Spoken and Written English (January 2007) Diploma of Community Welfare Work (April 2010), Diploma of Nursing (February 2015), Diploma of Management (March 2016).

10. With his for the visa application the applicant provided a Confirmation of Enrolment (CoE) in an Advanced Diploma of Leadership and Management with course dates from 23 May 2016 to 17 November 2017.

11. In a statement in support of his application to the Department, the applicant set out the following relevant information;

    i.He had chosen to enrol in an Advanced Diploma of Leadership and Management as he had just completed his Diploma of Management at the same institution, Stanley College. By taking the course he had decided to sharpen his management skills and to enable him to obtain more knowledge in his professional career as a nurse. It would also increase his chances of getting promoted in the future.

    ii.The applicant was currently working in the health industry. A copy of his CV was submitted to the Department. 

    iii.He found Australia to be a country which encourages people to study and that the academic reputation is excellent.

12. In their decision refusing the visa, a copy of which has been submitted to the Tribunal by the applicant, the delegate made the following findings;

    i.The applicant’s submissions to support his visa application were considered generic.

    ii.The applicant’s CV disclosed the applicant’s work history and that from 2010 he had worked as a support worker for clients. However it was considered that he had not demonstrated any progress in his work history in 6 years and it was not clear that the applicant was actually working as a nurse, rather than a support worker. 

    iii.The applicant first commenced studies in Management in 2011 for approximately 6 months and then again in 2015/2016. According to his CV, completing studies in Management had no impact on his work history. The applicant did not appear to have been using the studies or investment in Management to progress his academically and appeared to be moving sideways in order to use the student visa program to maintain residency. The delegate could find no advantage academically for the applicant’s proposed study to assist in progressing his career.

    iv.The applicant had lived in Australia for almost 8 years. During that period he had studied almost exclusively in the VET sector, pursuing multiple qualifications at the Diploma level. Aside from 18 months where he held a VC 485 visa. He had not progressed significantly in his studies.

    v.The applicant had provided little information regarding his ties to his home country.

    vi.The applicant had spent 2986 days in Australia and only 86 days offshore.

13. Prior to the Tribunal hearing on behalf of the applicant, his representative submitted a copy of the CV of the applicant, a completion letter for the applicant’s Advanced Diploma of Leadership and Management, a CoE for an Advanced  Diploma of Business with course dates from 15 January 2018 to 11 August 2018, evidence of land ownership by the applicant’s family, evidence of enrolment of his sister in study in India, a declaration by the applicant, income tax returns for the applicant from 2011 to 2017, IELTS test report form and a statement in submission. In the statement the agent for the applicant made the following submissions;

    i.Since the visa refusal the applicant’s career goal had changed, given his extensive experience in a non-nursing field and in consultation with his father.

    ii.Each course undertaken by the applicant will contribute to his career goal in India. The course content was discussed and submissions made as to relevance to his career goal.

    iii.Similar courses were available for the applicant in India, however the quality of education was behind Australia. Students studying abroad gain better knowledge and skills, and this translates to greater employment opportunities.

    iv.The applicant came to Australia at age 18 without a clear defined career path. After discussion with his father he now wants to open a facility for the elderly in his home city of Jalandhar. He has been conducting market research, proposes to rely on the business skills of his father and he has 5 years experience in the industry. His father owns land on which the facility could be built. The city has a population of over 1 million and only 8 facilities providing care of this kind.

    v.The applicant has grandparents, parents, a brother and sister in India. His grandfather was a farmer. His father works for the government, in revenue collection, as well as operating two businesses, a farm and a store. His siblings are enrolled in study in India. The applicant’s family are well connected to the local community. His family were economically sound and had access to funds to establish his business upon his return to India.

    vi.The applicant will complete his proposed studies in August 2018. He has provided an undertaking that this is his last course. His family have spent $50,000 on his education and this last course is essential for his skills to run a business.

    vii.The income tax returns of the applicant were submitted to support the claims that he had only worked part time and the primary reason for his stay in Australia was to study.

    viii.Culturally as the eldest son he was expected to care for his parents and he expects to inherit the family business and majority of property. His family were expecting him to marry prior to 30 and were making plans in this regard.

    ix.The applicant has no family who are permanent residents in Australia. He had relocated from South Australia to Perth in order to further his studies, and this demonstrates his genuine commitment.

    CONSIDERATION, FINDINGS AND REASONS

14. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

15. 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)     …

16. 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.

17. 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.

18. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

19. The Tribunal acknowledges that the applicant has undertaken and completed several courses of study while in Australia, and this is the general expectation of all applicants in Australia on student visas.

20. The proposed study by the applicant will see him remaining in Australia for 11 years completing only vocational courses. There has been little progress academically and the applicant appears to be undertaking short, inexpensive vocational courses at the same level. This strongly indicates to the Tribunal that the applicant is using the student visa system to maintain residence in Australia.

21. The applicant submitted to the Tribunal that he only wanted to complete one more course and then he would return to India. The Tribunal also noted that the applicant had finished his Advanced Diploma of Leadership and Management course in November 2017, yet the CoE for his Diploma of Business was only issued on 11 January 2018, after the Tribunal had sent the hearing invitation on 21 December 2018. The applicant claimed that this was due to the fact that his assessments for his previous course were not checked on time. However the letter he submitted from Stanley College dated 28 January 2018, sets out that he had completed the course on 17 November 2017. The Tribunal therefore is not satisfied that he was not released from these studies until January 2018 and could not enrol in any other courses. This factor added to the concern of the Tribunal, and as to the relevance of the applicant’s studies.

22. Additionally, given his past studies the Tribunal was unable to ascertain a significant value of the course for the applicant. The applicant claimed that his previous courses were more management based and through his current course he would learn how to run a business. The submissions provided on behalf of the applicant set out that the course included modules such as marketing management, managing risks, human resource planning and workforce development. The Tribunal considers many of these competencies relating to management would have already been covered in his Diploma of Management, Diploma and Advanced Diploma of Leadership and Management.

23. The applicant has changed his career intention from nursing, as set out in submissions to the delegate. Considering that the applicant only completed studies to the level of an enrolled nurse and his has not provided evidence of ever working as a nurse, the Tribunal has doubts over the reliability of this original claim.

24. The applicant claimed that he had done market research into the need for his proposed aged care business in Jalandhar. The evidence of this research is a google search submitted by the applicant of aged care facilities in the area. The applicant has not returned to India since 2013. He claims that his father has provided him with information, however the Tribunal is not satisfied that this equates to market research. The Tribunal acknowledges that the applicant’s father has land, and on this land a business could be built, however the proposed business is still a significant way from operation with the need for purpose built premises yet to be constructed. Furthermore, when the Tribunal questioned the applicant about the potential income and profitability of the business, the applicant was unable to present a business case, rather referred to the business contributing to the community in general. The Tribunal could not understand why,  if it was the applicant’s genuine intention to start this business that the applicant had chosen to further delay his return to India, after completing his previous courses, and embark upon and incur the expense of a further period of study. Considering the length of time that the applicant had already spent studying and not pursuing his career in his home country, this further delay also indicated that the applicant was using the student visa system as a means of remaining in Australia.

25. The applicant has acknowledged that he could undertake a similar course in his home country. The Tribunal has considered the submissions by the applicant about the different standard of education. However, this is also weighed against the potential for the applicant to be learning about business regulation and circumstances applicable to his home country, that he could add to his existing knowledge from Australia and the fact that he would be able to start work in his home country towards his career goal. The Tribunal was not satisfied as to the applicant’s reasons for undertaking further study in Australia.

26. It is acknowledged that the applicant has the majority of his family in India, with the exception of his brother who lives in Canada. The applicant has also demonstrated that his father has a reasonable income and owns property. It is accepted that these ties may serve as an incentive for the applicant to return. The Tribunal must however balance this with the fact that the applicant has lived independently in Australia since 2007, not returned to his home country since 2013, and the other evidence.

27. It is acknowledged that there is no evidence of any civil or military disturbances in the applicant’s country that would act as an incentive for him to remain in Australia. Similarly there is no evidence of any military service commitments.

28. The length of time that the applicant has spent in Australia is also of concern. While not determinative, the fact that the applicant has resided in Australia for in excess of 10 years, and worked at the same place for over 5 years, and not returned to his home country since 2013, suggest that he sees Australia as a place to live and not just study. The Tribunal notes from the tax returns that the applicant has provided his income from his employment has risen since 2014. While there is no evidence that the applicant has any family ties in Australia, it is expected that during his period of residence he would have established social and community ties. The Tribunal considered that the applicant’s circumstances in Australia may provide incentives for him to remain other than for the purposes of study.  

29. The Tribunal has assessed all of the evidence before it overall, including that he is currently enrolled, has previously completed courses in Australia, has said he will return home on completion of his studies, has strong family ties in India and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study or future study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

30. 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).

31. 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

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

    Penelope Hunter
    Member