Sunil Singh (Migration)

[2019] AATA 2243

Sunil Singh (Migration) [2019] AATA 2243 (8 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Singh

CASE NUMBER:  1714946

DIBP REFERENCE(S):  BCC2017/155425

MEMBER:Roger Maguire

DATE AND TIME OF

ORAL DECISION AND REASONS:              8 April 2019 at 11:38 am (QLD time)

DATE OF WRITTEN RECORD:  9 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 09 May 2019 at 9:36am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant criterion not met–  only returned once in five years – poor academic progress – applicant cancelled enrolment – maintain ongoing residence –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 June 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 June 2017 to refuse to grant the applicant a Student Temporary Class TU subclass 500 visa under section 65 of the Migration Act 1958, the Act.

4. The applicant applied for the visa on 12 January 2017.  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.

5. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of Clause 500.212(a) of Schedule 2 to the Migration Regulations 1994, the Regulations. The applicant provided the Tribunal with a copy of the delegate's Decision Record dated 27 June 2017. The Tribunal is not bound by the delegate's Decision Record but may have regard to it. The Tribunal also had access to the relevant file of the Department of Immigration and Border Protection.

6. The applicant appeared before the Tribunal on 8 April 2019 to give evidence and present arguments and was assisted by his registered migration agent. For the following reasons the Tribunal has concluded that the decision under review should be affirmed. The criteria for a Subclass 500 (Student) visa are set out in part 500 of Schedule 2 to the Regulations. The primary criteria in Clause 500.211 to Clause 500.218 must be satisfied by the applicant.

7. The issue in the present case is whether the applicant is a genuine applicant for temporary entry and stay as a Student.  Clause 500.212 requires as follows:

   A.  The applicant is a genuine applicant for entry to stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant's circumstances and the applicant's immigration history and if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant and 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 conditions 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.

8. In considering whether the applicant satisfies Clause 500.212(a), the Tribunal must have regard to direction number 69 assessing the Genuine Temporary Entrant Criterion for Student visa and Student Guardian's visa applications made under section 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 applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries, if the applicant is a minor the intentions of a parent, legal guardian or spouse of the applicant and any other relevant information provided by the applicant or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

9. The direction indicates that the factors specified should not be used as a checklist but rather are intended only to guide decision makers when considering the applicant's circumstances as a whole in reaching a finding about whether the applicant satisfies the Genuine Temporary Entrant Criterion.

10. The Tribunal had before it the decision record.  Salient points arising from it include the applicant entered Australia on a Student Visa Subclass 573 on 18 April 2014 as the holder of a Class TU 573 Student Visa but as at the date of that decision had never studied in the higher education sector as per his original stated intentions.

11. The applicant's visa history showed that he had spent 1,000 days in Australia and no days out.  This raised a concern that the applicant was using the visa program to maintain ongoing residence.

12. On 20 February 2019 the applicant was sent a written invitation to provide information about his entry and stay in Australia as a Student.  In his response delivered on 1 March 2019, which the applicant declared to be complete and correct, the applicant disclosed among other things education to year 12 at the JNK State Board of Education from March 2011 to May 2012 prior to coming to Australia.  No work experience prior to coming to Australia.  Work in Australia as a restaurant manager at Sy World Foods from July 2017 to March 2017.  Monthly expenses of $1,500.  The applicant's mother, siblings and spouse were in India and he last saw them in March 2018.

13. The applicant is not a member of any community group in India.  The applicant is not a member of any community group in Australia and has no ties or relatives living in Australia.  The applicant disclosed assets of a house valued at $100,000 and land valued at $100,000 in India.  The applicant's future employment aim was to be a business development manager in India where he believed he could earn a starting salary of Indian rupees 200,000 and up to 550,000 Indian rupees.  Or if that plan failed he planned to open a restaurant as he has all the management, business and cookery skills.

14. The applicant also disclosed one visit to India for 75 days in March 2018.  The applicant disclosed no other travel outside Australia since his arrival on 18 April 2014.  The applicant previously held a Student Subclass 573 Visa from March 2014 to March 2017.  The applicant has no pending visa applications and the applicant has had no prior cancellations or consideration of cancellations of a visa.

15. The applicant is currently enrolled in a Bachelor of Business, which he commenced in September 2017 and is to complete in August 2020.  The applicant does not have any issues concerning military service, political or civil unrest in India.  The Tribunal has considered all of the material before it.

16. Applicant's circumstances in his own country. The applicant informed the Tribunal that although he has not lived in India since 2014 he continues to have social and community ties. Following the procedures in Section 359AA of the Act the Tribunal put to the applicant that although he has a spouse, family and assets in India he has only returned once in five years and this might lead the Tribunal to find that his ties to India do not present a significant incentive for him to return to India. And if the Tribunal so found, that might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, which would mean he would not be granted a Student Visa.

17. The applicant confirmed that he understood this and was invited to comment or respond or seek more time before doing so.  The applicant said he would reply.  The applicant said that he wants to finish his study and that is why he has not been back.  He is waiting to complete his courses and then he can return home and open a business.  The applicant disagreed with the suggestion that he has no family or social ceremonies which required his return.

18. The applicant told the Tribunal that on his return to India he believes he will get a job in a bank or with a multinational company in India and his family has enough money to open a business, if he cannot get a job.  The applicant said he lives in a tourist area and he believes he could do well if he opened a restaurant as a cook and manager.  He believes he would earn $200 to $300 per week in India as an employee, cook, manager working 40 to 50 hours per week.  The applicant said he could earn about $400 per week with a bank or multinational company.

19. There is no relevant evidence regarding the applicant's circumstances in his home country relevant to others in that country and the tribunal makes no finding in that regard.

20. Having regard for the evidence that the applicant has a spouse in India although he did clarify during the course of the hearing this spouse was, in fact, a fiancée, and family and assets in India.  He has 0 the tribunal so finds and further finds that the applicant's ties to India do not present a significant incentive for him to return to his home country.

21. Based on the above matters put to the applicant in accordance with section 359AA, the Tribunal find that the applicant's circumstances in India would not present as a significant incentive to return to his home country.

22. The applicant has now lived in Australia for over five years and has been in the same employment between July 2017 and March this year earning $24,000 per year as a restaurant manager.  The applicant said he had no family or community ties in Australia, which would be a strong incentive to remain in Australia.  Notwithstanding what was reported in the documents delivered to the Tribunal, the applicant informed the Tribunal that he drove a taxi with Yellow Cabs and has been for five or six months.  He said he is earning three to $400 per week in cash working 17 or 18 hours per week.  The applicant said he has worked in a succession of restaurants and cafes.

23. The applicant said that in India doing comparable work he would expect to make 60,000 to 70,000 rupees per month, about $1,400 per month fulltime. And that 17 hours per week would earn him about $200 per week. The applicant agreed with the suggestion by the Tribunal that he could earn much more in Australia in his present job than he could in India with his present and proposed qualifications. Adopting the procedure in section 359AA of the Act the Tribunal put to the applicant that his earnings in Australia were substantially higher than what he could earn in India and that could present a significant incentive not to return to India. And if the Tribunal so found that might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student and this might be part of the reason for affirming the decision under review.

24. The applicant confirmed that he understood this and was invited to comment or respond or seek more time before doing so.  The applicant said he would reply.  The applicant said that if his earnings are higher so are his expenses higher as he has rent, electricity et cetera to pay and in India his house is free.  The applicant said his State gives subsidies from a gold mine and gives its people more opportunities.  The applicant said that he could live just as well in India as he could in Australia because of the government subsidies.

25. The Tribunal accepts the applicant's evidence as to his earnings in Australia being substantially higher than what he could earn in India but having regard to his response to the above propositions finds that this does not present a significant incentive for him not to return to India.

26. The value of the course to the applicant's future.  The Tribunal noted that the applicant has previously completed a Diploma of Management, a Diploma of Business, an Advanced Diploma of Business, and an Advanced Diploma of Leadership and Management.  The applicant said he could not get a job with his current qualifications and needs to study further.  The applicant said that his Diploma of Management, Diploma of Business, Advanced Diploma of Business and Advanced Diploma of Leadership and Management have left him unemployable in India.  The Tribunal returned to this subject later and the applicant repeated his evidence, that he could not get a job with his current qualifications.

27. The Tribunal asked the applicant specifically what he expected to learn in his current course, which had not been covered in his previous four qualifications.  The applicant appeared to struggle to answer.  After a pause the applicant said that his Bachelor of Business will give him experience in leadership and management and will open more opportunities in the market.  The applicant was again asked what he will learn in his current course and said he will learn how to handle different situations in his employment and to get into the environment of the business.  When asked what sort of situations he said "How to work in a team, how to be a leader, and how to manage workloads".  The applicant was asked if he was saying that he had never learned any of that in the four qualifications that he has now and said "No".

28. The Tribunal asked the applicant how much he would expect to earn with the courses he has already completed.  The applicant confirmed that he would not be able to earn anything with his current qualifications.  The tribunal asked the applicant how much he could expect to earn after he completes his current course and the applicant said that with his current study he would hope to earn a minimum of $1,400 per month.

29. Following the procedures in section 359AA of the Act the Tribunal put to the applicant that having regard to his evidence of the number and fields of his current qualifications the applicant has understated the value of his current qualifications and overstated the value of his current course in terms of his future economic circumstances and that might be a matter which the Tribunal relies upon and leads it to being unable to find that the course will make the claimed significant difference to his future economic circumstances. And if the Tribunal so found that might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, which would mean he would not be granted a Student Visa.

30. The applicant confirmed that he understood this and was invited to comment or respond or seek more time before doing so.  The applicant said he would reply.  The Tribunal took a 10 minute break, so that the applicant could discuss the matter with his advisor prior to responding.

31. Following the break the applicant said he had completed six month courses and in India they have diplomas of one year minimum and that his courses in Australia will not count in India.  He said that would find a job but not in the business field, which he wishes to do.  The applicant was asked when he found this out and replied that he found this out when he was in India in 2018.  He said that he has done the diplomas in order to get credit into his Bachelor of Business degree.  The applicant said he had been allowed a credit of less than one third of the subjects and has eight subjects left to complete.

32. The Tribunal accepts the applicant's evidence as to the number and fields of the applicant's current qualifications but finds that the applicant has understated the value of his current qualifications and overstated the value of his current course in terms of his future economic circumstances.  The evidence before the Tribunal is not sufficient for the Tribunal to be able to find that the applicant's current course of study will be of significant economic benefit as claimed by the applicant.

33. The applicant's immigration history. Following the procedures in Section 359AA of the Act the Tribunal put to the applicant that there is evidence that he has now lived in Australia for five years and never complied with the terms of his original visa and that might be a matter which the Tribunal relies upon and leads it to make findings that the applicant's immigration history is unsatisfactory. And if the Tribunal so found that might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, which would mean he would not be granted a student visa.

34. The applicant confirmed that he understood this and was invited to comment or respond or seek more time before doing so.  The applicant requested more time and the Tribunal again adjourned.  Following a short break the applicant said that he did not intentionally breach the conditions.  He found it hard to study at Bachelor level and could not complete the course.  He cancelled his enrolment and looked for similar courses which were easier.

35. The Tribunal has considered the applicant's reply and finds nevertheless that the applicant has breached the terms of his original visa because of poor academic progress.  The Tribunal finds that the applicant has now lived in Australia for five years and never complied with the terms of his original visa and therefore finds that the applicant's immigration history is unsatisfactory.

36. At the conclusion of the hearing the applicant was asked if there was anything else he wished to say.  The applicant said that if he gets an opportunity to complete his study he will get a job and he will try to finish as soon as possible as he plans to get married upon his return.  The applicant said he is not planning any further studies and he expects to finish in one year at which time he will return to India.

37. The Tribunal finds that there is no evidence of any other relevant matters before the Tribunal. The Tribunal finds that the applicant's immigration history weighs against him. 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 Clause 500.212(a). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by Clause 500.212.

38. 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 590 (Student Guardian) Visa.  Accordingly, the decision under review must be affirmed.  The decision of the Tribunal is that the Tribunal affirms the decision not to grant the applicant a Student Temporary Class TU Visa.

    DECISION

39. The Tribunal affirms the decision under review.

    Roger Maguire
    Member