Solanki (Migration)

[2019] AATA 6914

Solanki (Migration) [2019] AATA 6914 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagroop Singh Solanki

CASE NUMBER:  1813765

HOME AFFAIRS REFERENCE(S):          BCC2018/1140050

MEMBER:Noelle Hossen

DATE:10 December 2019

PLACE OF DECISION:  Perth

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

Statement made on 10 December 2019 at 11:15am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – non-commencement of higher-level courses and completion of two lower-level courses in different subject area – period of non-enrolment – new enrolment obtained between responding to tribunal’s request for further information and hearing – vague and unconvincing evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359

Migration Regulations 1994 (Cth), 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 Home Affairs on 23 April 2018 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 9 March 2018. 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).

4. The applicant provided the tribunal with a copy of the Delegate’s decision.

5. The Tribunal did request that the applicant provide further information prior to the hearing in accordance with Section 359(2) on the 25 June 2019 .The applicant did provide further information and completed the Form sent to him by the Tribunal prior to the Hearing on the 1 July 2019.

6. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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?

10. 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, which is attached to this decision, 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.

11. 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.

12. The applicant arrived in Australia from India on the 17 August 2015.

13. He stated that his family reside in India consisting of his father, mother, sister and brother. His siblings are married but he is not. He is now 27 years of age as he was born on the 30 of April 1992 .He said that his family help him financially whilst he is in Australia. He said at the hearing that he calls his family every day. However the Tribunal finds that in spite of the fact that his family reside in India and he does not have any family who live in Australia it would seem that he has not returned to his home country since his arrival in Australia in 2015.He does not appear to have strong family ties as he has not returned to visit his family in India since 2015. The Tribunal finds that the applicant may not have a significant incentive to return to his home country as he has not been back since his arrival in Australia.

14. He said that when he returns to India he will live in his parents’ home. He said that his parents are quite old as his father is 82 years of age and his mother is 76 years of age. He is much younger than his brother as his brother married when he was born. He says that his brother owns a transport business and seems to do well although he has his ups and downs in business.

15. He was hoping to increase his earning capacity by undertaking the course in Light Mechanical Technology. The applicant stated that he wanted to work as a Mechanical Engineer and was expecting a salary which would equate to $4000 to $8000 Australian dollars per month. The applicant did not provide evidence to the Tribunal as to how he arrived at the submission that he would increase his earning capacity when he returns to his home country.

16. The Tribunal did not have much evidence before it to make a finding in respect of the economic circumstances of the applicant relative to other persons in India.

17. He says that he has a lot of friends in Australia who come from India who reside in Australia.

18. He does not own any assets in India (other than the assets owned by his family) or in Australia.

19. He did not have a current Certificate of Enrolment (hereinafter referred to as COE) at the time that he replied to the request for further information by the Tribunal on the 1 July 2019. He responded to information sought by the Tribunal pursuant to Section 359(2) of the Act which specified that he needed to produce his COE. He did not produce the same until the date of the hearing. He told the Tribunal at the hearing that he had obtained his Certificate the week before the Hearing. The Tribunal does not attach a lot of weight to the fact that the applicant was able to obtain a COE just before the hearing in favour of his application for review as it was simply to ensure that he complied with the determinative requirement for his application to succeed. His COE was for a Course being Certificate III in light vehicle Mechanical Technology at the Skilled Services Australia. The COE was not consistent with his previous study in Australia and may have been obtained by him simply to present to the Tribunal at the hearing.

20. He had previously been enrolled in various courses that he did not start in Australia. He had completed a Bachelor of Technology in Mechanics from June 2011 to December 2014 at the Lingaya University in his home country. He had passed the first English Course being Academic English Course 4 which he completed in October 2015.He did not pass course 5. He was enrolled in a Master of Engineering at Edith Cowan University but he did not start the course. He said that his parents had convinced him to study at Edith Cowan University. He was much stressed and could not cope with the Course. He had passed 2 courses at World College being Certificate IV in Business in October 2016 and a Diploma of Business in November 2017.

21. He told the Tribunal that he had difficulties when he was studying for his Bachelor of Business as he had passed and completed the assignments but that the College did not issue a Certificate .He tried to lodge a complaint .He said that he had made enquiries with the Ombudsman as he was very upset that he had paid $8000 and did not achieve anything. He had been getting help from an agent.

22. He was also enrolled in a Bachelor of Community Services at Stotts College that he did not start in 2018.The Tribunal finds that he was not complying with the conditions of his visa for the last 12 months as he had not been studying. He told the Tribunal that he did not know that he could study in spite of the fact that his visa was refused. The Tribunal finds that he only obtained a COE to produce at the hearing as he was aware that he must be enrolled in a Course of study to succeed in his application for review.

23. At the hearing he was questioned as to why he did not complete his studies in India and he gave general answers about the fact that the education system is much better in Australia. He confirmed that he could study in India. He says that his father plans to help him when he returns to India and that he will open an automotive business to manufacture parts in Ludhiana Punjab. He said that he had gained valuable experience in India in the automotive industry as his uncle owns a workshop and he had worked for him in India before he came to Australia.

24. He was asked why he could not learn the skills in India and he said that he was studying in Australia as he expected that the Australian system is more advanced and that he would learn how to fix electric vehicles. He was asked if, in India, many people own electric vehicles and he did not give a straightforward answer to the question. It would be pointless for him to learn to fix them if they are not common in India.

25. The Tribunal recognises that it is important to allow for reasonable changes to career and study pathways. Overall the Tribunal found the applicant’s testimony to be vague and unconvincing. The Tribunal is concerned by the amount of time that the applicant has been residing in Australia, almost 5 years. The fact that he did not study for most of the time in the last 12 months before the hearing is a matter that the Tribunal places a great amount of weight on, against his case.

26. The applicant gave evidence that he has worked at a car wash called Magic Car hand wash from 10/2015 to 4/2017 and earned $38,000 and then as a courier as a subcontractor(self-employed) earning $21,000. He presently lives in Bayswater with 2 other persons and he pays $150 per week rent.

27. The applicant has completed qualifications in business whilst in Australia. The Tribunal considers that the applicant’s previous studies in Business in the VET sector only marginally improve his employment prospects in India. The Tribunal considers that the applicant’s studies in the VET sector, and proposed further studies ,offer limited incremental value when considered alongside the qualifications and experience that that the applicant has already gained in India and Australia particularly if he plans to go back to run a family business.

28. Having carefully considered the applicant’s oral testimony regarding his career aspirations, the Tribunal considers that, if ,the applicant did have a plan to pursue a career outside of Australia, then he could have already left Australia to implement that plan.

29. If the applicant was keen to start the family automotive business in India he should have set out a clear plan and provided specific details to the Tribunal.

30. The Tribunal does not accept, given the earlier concerns as set out above that the applicant is undertaking these courses and proposes to undertake the courses, for the stated reason of returning to India to work in a family automotive workshop. Having carefully considered his study history as stated above and his proposed course, the Tribunal finds that these indicate that the applicant is not, or likely not to be, a genuine student. The courses that he has undertaken are low level  and he has changed courses over the years, and the Tribunal finds that the courses undertaken so far do not fit coherently into his claimed career path of working in a proposed family business. The concern that the Tribunal has is that the applicant is using the student visa programme to maintain ongoing residence in Australia.

31. In accordance with the ministerial direction the Tribunal questioned the applicant regarding the circumstances in his home country. The applicant confirmed that he does not have to do any military service upon returning to India and there is no political of civil unrest in this home country presently.

32. In his original application the applicant did not declare any travel to any other country other than Australia .There is nothing before the Tribunal to indicate that the applicant has experienced visa refusal or immigration issues in another country.

33. 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).

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

    THE TRIBUNAL AFFIRMS THE DECISION NOT TO GRANT THE APPLICANT A STUDENT (TEMPORARY) (CLASS TU) VISA.

    Noelle Hossen
    Member

    
    

    Attachment – Direction No.69

    DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

    (Section 499)

    I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

    Dated: 18 April 2016

    Peter Dutton

    
    

    Minister for Immigration and Border Protection

    Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

    Part 1 of Direction No. 69 - Preliminary

    Name of Direction

    This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

    It may be cited as Direction No. 69.

    Commencement

    This Direction commences on 1 July 2016.

    Interpretation

    Act means the Migration Act 1958.

    Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

    Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

    Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Regulations mean the Migration Regulations 1994.

    Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

    Spouse has the same meaning as the definition of the term in section 5F of the Act.

    Student visa means a Subclass 500 (Student) visa

    Student Guardian visa means a Subclass 590 (Student Guardian) visa.

    Application

    This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

    This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

    The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

    Preamble

    The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

    An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

    The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    a.the applicant’s circumstances; and

    b.the applicant’s immigration history; and

    c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

    d.any other relevant matter.

    This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

    Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

    Part 2 of Direction No. 69 - Directions

    Assessing the genuine temporary entrant criterion

    1.Decision makers should not use the factors specified in this Direction as a checklist. The listed factors 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.

    2.Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

    a.considering the applicant against all factors specified in this Direction; and

    b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

    3.Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

    4.Circumstances where further scrutiny may be appropriate include but are not limited to:

    a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

    b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

    c.the applicant intends to study in a field unrelated to their previous studies or employment; and

    d.apparent inconsistencies in information provided by the applicant in their Student visa application.

    5.An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

    The applicant’s circumstances

    6.Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

    7.For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

    8.Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

    The applicant’s circumstances in their home country

    9.When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

    a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

    b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

    c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

    d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

    e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

    10.Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

    The applicant’s potential circumstances in Australia

    11.In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

    a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

    b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

    c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

    dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

    e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

    Value of the course to the applicant’s future

    12.Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

    a.whether the student is seeking to undertake 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. Decision makers should allow for reasonable changes to career or study pathways; and

    b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

    c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

    The applicant's immigration history

    13.An applicant’s immigration history refers both to their visa and travel history.

    14.When considering the applicant’s immigration history, decision makers should have regard to the following factors:

    a.Previous visa applications for Australia or other countries, including:

    i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

    ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

    b.Previous travels to Australia or other countries, including:

    i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

    ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

    iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

    iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

    If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

    15.If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

    Any other relevant matters

    16.Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.