SINGH (Migration)

[2017] AATA 1463

SINGH (Migration) [2017] AATA 1463 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SATNAM SINGH

CASE NUMBER:  1511515

DIBP REFERENCE(S):  BCC2015/819905

MEMBER:Karen Synon

DATE:8 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2017 at 2:55pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Genuine temporary entrant – Extended time in Australia –10^th  vocational education course – Using student visa program to maintain residence

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

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 13 March 2015. The delegate decided to refuse to grant the visa on 10 August 2015. 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. Where used in this decision:

   a.CoE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.The department refers to the Department of Immigration and Border Protection;

   e.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application.

4. 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 he was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

5. The applicant applied for review of the primary decision on 22 August 2015 and provided a copy of the department’s decision to the Tribunal.

6. The visa application form records that the applicant applied for this student visa in order to complete a Certificate IV in Commercial Cookery and a Diploma of Hospitality.

7. The primary decision contains the following relevant information in relation to the applicant circumstances in Australia noting the applicant was enrolled in the following courses of study in Australia:

   Examination of PRISMS indicated that you have previously been enrolled in the following courses:

   ·Advanced Diploma of Hospitality Management

   ·Diploma of Hospitality Management

   ·Diploma of Hospitality

   ·Certificate IV in Business

   ·Diploma of Business

   ·Advanced Diploma of Hospitality

   ·Diploma of Management

   ·Certificate IV in Marketing

   ·Diploma of Marketing

   PRISMS indicated that you appear to have only completed eight of the nineteen enrolments you have held, that the completed courses correspond to 6 distinct courses in three separate branches of education since arriving in Australia in August 2009 and have held two or more enrolments in every course with the exception of the Certificate IV in Business.  PRISMS outlines four separate occurrences of enrolments in hospitality related studies, and four individual education providers between your initial arrival in Australia on 5 January 2009 and the lodgement of this application on 13 March 2015.  It is observed that each of these hospitality related enrolments were cancelled due to non-payment of fees, student notification of cessation of studies or non-commencement of studies. 

   Your education history according to PRISMS illustrates numerous changes in your education pathway to unrelated courses on four previous occasions, your most recent re-enrolments back to hospitality related studies...signifies your fifth changing your education stream.  The repeated changing of fields of study have had flow-on effects to your overall academic progress and chosen education pathways, including the enrolments included in this application which appear unrelated to your reported completion in a Business, Management or Marketing studies.  Therefore the value of these courses to your future is in question.

   Department records demonstrate you have departed Australia on two occasions for a combined total period of 112 days only, since your arrival in Australia [on] 5 January 2009…

   This is your fourth application for a Student visa in Australia.  You are requesting a further stay period until December 2016.  Despite the considerable proposed stay on Student visas, you are continuing to enrol in low-level, low cost certificate courses within the same sector after spending a considerable time of 7 plus years in Australia which demonstrates a lack of interest in study, academic progression and supports you are using the student visa program to maintain residency in Australia… The information available to the Department regarding your long-term migration intentions, your numerous changes in disciplines and courses as well [as] the interruption of your study of Hospitality related causes, suggests your desire to remain in Australia may outweigh any need to gain an appropriate educational outcome.

8. The applicant provided the following relevant statement of genuine intention in support of his visa application:

   I have been living in Australia for few years now.  My aim of studying in Australia was to attain the international qualification which is renowned worldwide.  I came to Australia on student visa and I am currently enrolled in Certificate IV in Commercial Cookery and Diploma of Hospitality.

   I am always interested to go back to my home country and start my own business in my field of interest i.e. in field of Hospitality as I want to open my own restaurant in my home country.  To fulfil my dream, I did Certificate III in Hospitality.  After completing my Hospitality course I decided to study business and marketing level courses so that I can have appropriate knowledge and expertise to start, run and manage my business efficiently.

   In order to have a near look on how a business work in my field of interest.  I am working as assistant cook on volunteer basis with one of the Indian restaurants in Wallan.  I experienced that Cert III in Commercial cookery is not enough in order to grow my business in future.  So I decided to study the complete package of hospitality studies i.e. Certificate IV in Commercial cookery and Diploma of Hospitality.  The course has several units that are different from my previous studies.  These units will be very helpful in proper running of my business, managing and growth of my business.  I would like to explain some of the units as:

   Roster staff: this unit will help me in learning to make and manage my staff working across a range of different service periods.

   Implement and Monitor environmentally sustainable work practices: is very important to have knowledge of processes and techniques necessary to implement and monitor environmentally sustainable work practices, including processes and tools.

   Coordinate Cooking Operations: this unit will help in learning skills, knowledge to coordinate the production of food within commercial kitchens, planning and producing food, organising required food supplies for the production period.

   Manage finance within a Budget: This unit will help me in gaining knowledge to manage and control a budget for my business.

   Source and use information on the hospitality staff: This unit will help in gathering information, skills and knowledge about technology, laws and ethical issues especially relevant to the hospitality industry.

   I found Sunshine College of Management really impressive.  The professional staff, good in-depth knowledge and also they give more emphasis on practical skills.  My chosen education provider has a transparent assessment system and identifies the key requirements of students and meets them accordingly.

   Studying in Australia does mean a lot as internationally recognized qualification does have far more value than studying in College in India.  I am very happy with the international standard of education and would love to complete my studies from Australia only.  Australian education system provides complete theoretical and practical skills and knowledge.  The teaching methodologies are advanced and challenge the students to explore every dimension in their chosen field of interest.  The market in Melbourne is constantly involving (sic) and I can learn about various business strategies that are employed by various consumer sectors.  I have invested my time and capital is (sic) attaining a quality education promises a brighter future for me.  I believe that attaining education in such a competing environment will increase my employability and future prospects as an entrepreneur.  I am currently living in shared accommodation.  I am well aware of Australian culture and I have many Australian friends too.  I have the full support of my family from India, they have helped me in every aspect of life and have always been supportive of what I do and what to achieve in life.

   I am currently working as a volunteer assistant cook in one [of] the Indian Restaurant so that I can gain maximum knowledge and practical skills which are very much necessary to start my business in back (sic) home in India.  I am providing a letter from my employer attached with my email…After completing my studies, I have planned to return back to my home country establish my own business in the field of hospitality.  I believe that having obtained Australian education will enable me to (sic) extra edge in establishing my business because Australian institutes provide excellent workshop environment to learn the basics.  I feel the responsibility of going to my home and meeting the expectation of my parents.

9. The applicant appeared before the Tribunal on 24 July 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  Before the hearing the applicant provided his education transcripts and completion certificates and other documents not relevant to this review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. 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)     …

13. 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.

14. 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.

15. The Tribunal has had regard to the following matters in considering whether it is satisfied that the applicant intends genuinely to stay in Australia temporarily.  It discussed with the applicant at the hearing a range of matters arising from Direction 53 and raised with him a number of concerns arising on the evidence before it.

    The applicant is aged 27.  He first arrived in Australia in January 2009 aged 18 on a 572 visa to study a Diploma of Hospitality Management.  The highest education he achieved in India was secondary school.  He only worked helping his father on the farm before coming to Australia.

    He enrolled to do the Diploma of Hospitality Management because he wanted to do something different (to his father who runs a farm) and experience a different country and culture.  He could not complete it then and only completed the Certificate III in Cookery because his agent told him that business will have more opportunities.

    The applicant agreed that the 19 enrolments as recorded on PRISMS referred to in delegate’s decision on page 3 are a correct record of his study attempts in Australia.

    In the over 8½ years he has been in Australia he has successfully completed a:

    oCertificate III in Hospitality (Commercial Cookery) on 16 December 2009

    oCertificate IV in Business on 21 October 2010

    oDiploma of Business on 14 July 2011

    oDiploma of Management on 19 December 2012

    oDiploma of Marketing on 14 November 2013

    oAdvanced Diploma of Management on 15 November 2014

    oCertificate IV in Marketing on 8 March 2015

    oCertificate IV in Commercial Cookery on 27 September 2016

    oDiploma of Hospitality on 21 April 2017.

    He is currently studying his Advanced Diploma of Hospitality Management which he commenced on 15 May 2017 and is due to complete in March 2019.

    Asked what specifically this additional 10th course will allow him to do that all of his other cookery/hospitality, business, management and marketing courses do not, the applicant said it is to complete his cookery course and to be a good chef; he needs this.  Asked again how this particular course is necessary to his future career plans the applicant said in this course he will learn to open a new business and restaurant.  He said he needs the units: select staff, recruit them; and offer jobs and hiring.

    The Tribunal asked if the applicant had previously enrolled in the Advanced Diploma of Hospitality Management as the primary decision suggests.  He said yes.  Asked why he had not completed this course previously the applicant said at the time he did not have proper guidance.  This is the 4^th time he has enrolled in the Advanced Diploma of Hospitality Management.

    Asked what he intends to do on his return to India or a third country the applicant said his father has a big land which is near a main road and when he goes back he will start his own business.  His father will build and finance this and it will cost a minimum of 20-25 lakh.  The applicant said when he goes back he will start a restaurant.  He has joined a restaurant here as a chef and is learning.  His home town is small and there are some small restaurants but he will start a larger one with more facilities provided to his customers.

    Invited to detail how he has researched or examined this business proposal the applicant said his friend and his brother are doing the research and will find out and do the costings.  His brother said he has started research and when he (the applicant) returns they will take about 6-7 months to finalise the structure and build it.  Asked what work he would do now if he returned to India the applicant said he can start the business if he goes back now and the restaurant will start in 6-7 months.  He now works part time as a chef and he will provide both Indian and Chinese food.

    Both his parents and siblings live in India.  His mother is a housewife; his father is a farmer with both agriculture land and a dairy herd.  His brother and sister are both married.  He has no family or extended family in Australia.  He lives with a friend in Australia and is not married or engaged.

    In Australia the applicant worked: at car washes for 2-3 months in 2011; in a caravan manufacturing company for a year in 2013 and from 2014 in a warehouse in Campbellfield.  In April 2017 he commenced employment as a chef at Hume Havli, an Indian restaurant and catering business in Hume.  He now works 15, 17 or 20 hours a week.

    The applicant's original intention/plan in coming to Australia was to see the country, culture and living style and to study.  He intended to stay for 2 or 3 years.  He said he is very happy to return India now.  He has never applied for any other visa in Australia.

    Since arriving over 8½ years ago the applicant has only returned to India twice because his sister married in 2010 and in 2012 his father told him to come back because he wanted to begin (building) a new house and there was a ceremony/celebration.

    The applicant has no savings in Australia and his only asset is his car.  His father has bought land for him and his brother in India.  If offered a job now in India he would take it.

    Invited to explain why he has not progressed in his intended studies in the over 8½ years he has been in Australia and why this is the 4^th tme he has enrolled in the Advanced Diploma of Hospitality Management, applicant said when he arrived he was misguided.  He did some marketing then thought he should do a course in cookery and then got a job as a chef and then thought he should do the Certificate IV and other courses so he can run his business without loss.

    The applicant said he was not aware the department would reject his application.  When he arrived he was too young and was misguided and whoever told him things he would follow.

    Invited to make any final comments or oral submissions the applicant said when he came to do the Certificate IV in Cookery he tried to be in his field but couldn’t get a job due to his religious beliefs that he keep his long beard.  He now has a job where he can keep his beard.  He had discussion with his father the second time he went to India and he said ‘this will be the final time’.  He said he wants to go back because he has no family in Australia.

16. The Tribunal has serious concerns about the applicant’s study history, his lack of course progression, the long period of time he has been in Australia and the value of his current proposed course to his future in India and discussed these concerns with him at the hearing.

17. The applicant is aged 27 and came to Australia in January 2009.  At the time of this decision he has been in Australia for over 8½ years and is now seeking a student visa to complete an Advanced Diploma of Hospitality; a course he has previously enrolled in but not completed multiple times.  Based on the CoE provided this Advanced Diploma of Hospitality will not be completed until May 2019 at which time the applicant will have been in Australia for over 10 years during which time he will not have progressed beyond VET sector courses.

1. When applying for this visa the applicant only wanted to complete a Certificate IV in Commercial Cookery and a Diploma of Hospitality and said he needed the units: Roster staff; Implement and monitor environmentally sustainable work practices: Coordinate cooking operations; Manage finance within a budget; and Source and use information on the hospitality staff, in order to grow his business in the future and that after finishing these courses he would return back to his country to establish his own business in hospitality.  However now, having finished these courses, he wants to do an additional course; one that he has enrolled in multiple times previously but never completed.

2. When the applicant said he is now ready to return to India, the Tribunal asked him why therefore he wanted to complete another course noting that he has now completed the 2 courses he had sought this student visa to do being the Certificate IV in Commercial Cookery and a Diploma of Hospitality.  He responded that it is to further his knowledge and his migration agent recommended it to him because he wants to do something in cooking.

3. During the hearing the Tribunal expressed its concerns about the relevance of the proposed additional course to his stated intention of opening a restaurant in his home town given his inability to explain to the Tribunal’s satisfaction any sound research or thought out approach especially given his evidence that he has had this idea for over 3½ years.  The applicant said he was sorry he could not provide proper information but he had a discussion with his father who said “you can’t go left and right; you need to think about a career”.  He said his brother and friend are doing the research and will find out the costings however if his brother and friend have done research, the applicant was not able to communicate it in any coherent way.  He said the restaurant will be built on land his father owns and his father will finance it.  It will be built when he returns and it will take 6-7 months to finalise the structure and build.  His evidence was he needed to do the units: select staff, recruit them; and offer jobs and hiring and that it would help him learn to open a new restaurant business.   However he also said he would pursue the same career path if he had to go home now.  Despite specifically asking the applicant about his proposed business venture he was not able to demonstrate any coherent planning or thought processes.  He provided no business plan or research supporting such a venture and was totally unpersuasive in his evidence in this regard relying on generalities such as he would provide a restaurant with better facilities and he would provide both Chinese and Indian food. The Tribunal observes that given the applicant now wants to stay in Australia for 10 years so he can complete a 10^th course, his evidence about opening his own restaurant was totally lacking in detail and foresight. 

4. The applicant did not demonstrate to the Tribunal’s satisfaction that completing the proposed 10^th course would add any demonstrable value to his future employment prospects and/or remuneration.  Asked what work he would do now if he returned to India the applicant’s evidence was that he can start the business and the restaurant will start in 6-7 months which is exactly the same time line as he proposed after finishing the proposed course.

5. During the hearing the Tribunal expressed its concern as to whether it could be satisfied that the applicant is a genuine temporary entrant in light of him: arriving in Australia over 8½ years ago and only completing low level VET sector courses which have been in several different course subject areas and the fact that he had previously enrolled three times but never completed the course he is now proposing to complete and therefore his overall unsatisfactory course progression in Australia.  Further, the fact that in over 8 years he has only returned to India twice and both times for specific purposes rather than just visiting his family appears to undermine his claims that he intends to return to India after the completion of this course and that these significant circumstances raise concerns that he is using the student visa program to maintain residence in Australia. 

6. The applicant’s response was to repeat that he was misguided and when he realised that he had the motive to start a restaurant he wanted and was eager to know the facilities.  Asked when he decided he wanted to start a restaurant in India the applicant said it was in 2012/2103 when he returned to India and his father asked him what he wanted to do with his life.  That was when his father told him he should learn before he starts a restaurant. 

7. In weighing the applicant’s circumstances in Australia and in India the Tribunal notes he does have ties in India as his parents and siblings live there however the applicant has resided in Australia for over 8½ years and has only returned to India twice in that time and both times when he was required to return.  The first time was for his sister’s marriage and the second time was when his father told him to come back because he wanted to begin (building) a new house and there was a ceremony/celebration.  The Tribunal observes that these factors suggest that the extent of the applicant’s personal ties to his home country do not serve as a significant incentive for him to return to India and to make his stay in Australia a temporary one.

8. The applicant has no income or job offer in India and he has no assets in India other than some land his father has purchased for him and his brother.  Since arriving in Australia in 2009 the applicant has been employed at car washes in 2011, in a manufacturing company for a year in 2013 and from 2014 in a warehouse.  This year he commenced employment as a chef at an Indian restaurant and catering business and works 15, 17 or 20 hours a week.  This indicates that the applicant he has stronger financial ties to Australia than to India, given his employment history in Australia since 2011.

9. In making these observations the Tribunal notes the applicant’s evidence that he wants to go back to India because he has no family in Australia and he feels the responsibility of going to India and meeting the expectations of his parents however this appears to be inconsistent with his limited trips to India during a lengthy stay in Australia.

10. The Tribunal noted at the hearing that it had sent the applicant copy of Direction 53 with the hearing invitation and had specifically requested him to have regard to it in any submissions that he provided and that it would be asking questions regarding the issues raised in Direction 53.  Given the opportunity to draw the Tribunal’s attention to other considerations contained in Direction 53 the applicant did not add or highlight any considerations not already discussed with him during the hearing other than to repeat that he came here too young and everyone was giving him advice and now he knows his own mind.

11. Invited to comment on any matter or issue he raised in his statement of genuine intention to the department that had not been well canvased at the hearing the applicant said he came here too young and was misguided.  He now knows he wants to go in the restaurant line; he has to go the proper way.

12. The Tribunal formed the view that the applicant was pursuing this 10^th course to maintain ongoing residence in Australia.  It is not persuaded that it is of additional value to his future because the applicant has not provided persuasive evidence that it is additionally necessary to his proposed future business venture; that is starting a restaurant in his hometown.  While the Tribunal accepts that international, worldwide renowned qualifications with complete theoretical and practical skills and knowledge may be highly valued in India and have more value than studying in a college in India, the applicant has already completed 9 qualifications in Australia and has had ample time in the country to complete additional study, including the qualification he now proposes to complete, should he have chosen to do so.  This is demonstrated by the fact that he has enrolled in this same course on multiple occasions.

13. In summary, given the applicant’s evidence that he will return to India to establish a restaurant; an endeavour his father will finance and that he will undertake this venture whether or not he completes this 10^th VET sector course and based on his general and superficial evidence as to his proposed business in India, along with the fact that he has already been in Australia for over 8½ years and has had ample opportunity to complete any study he wished to during that time including his proposed course during the multiple previous times he has enrolled in it, the Tribunal has formed the view that the applicant is using the student visa to maintain ongoing residency in Australia. The Tribunal is not persuaded that this 10^th course is of additional value to his future because the applicant has not provided persuasive evidence that it is additionally necessary to his proposed future business venture of starting a restaurant in his home town.  While the Tribunal accepts that Australian qualifications may be highly valued in India and that the applicant believes he arrived in Australia too young and has been misguided by others, he has completed 9 qualifications in Australia and has had ample time in the country to complete additional study, including the qualifications he now proposes to undertake, should he have chosen to do so.

14. 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).

15. 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

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

    Karen Synon
    Member