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Bhatt (Migration) [2020] AATA 5234 (13 October 2020)

Last Updated: 4 January 2021

Bhatt (Migration) [2020] AATA 5234 (13 October 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Niravkumar Mahendrakumar Bhatt

CASE NUMBER: 1822619

DIBP REFERENCE(S): BCC2018/2417274

MEMBER: Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS: 13 October 2020 at 4:04 pm (VIC time)

DATE OF WRITTEN RECORD: 3 December 2020

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision under review.

Statement made on 03 December 2020 at 12:58pm

CATCHWORDS
MIGRATION – Student (Temporary) (Subclass TU) visa – Subclass 500 (Student) – genuine temporary entrant – visa, study and work history – few completed courses and multiple deferrals, non-commencements and non-completions – enrolment in different subject area – vague explanations of circumstances and plans – wife and daughter in home country, but few, brief visits – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212, Schedule 8, Condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 July 2018 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 13 October 2020 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. Mr Bhatt, to be eligible for the grant of a Student Visa applicants must satisfy a range of criteria set out in the regulations.
4. You applied for a student visa on 5 June 2018, and your application was refused on 7 July 2018 because, having considered your circumstances the delegate was not satisfied you met the Genuine Temporary Entrant criteria and therefore did not satisfy clause 500.212.
5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.
6. To satisfy clause 500.212 an applicant must be both a genuine student and a genuine temporary entrant. To be a genuine student you must be engaged in, and applying yourself to a meaningful program of study progressing academically down an identifiable path.
7. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily. The courts have found that to satisfy this requirement an applicant must unqualifiedly intend his or her stay to be temporary.
8. As was explained in the primary decision when considering if an applicant is a genuine temporary entrant it is necessary to have regard to what is known as Ministerial Direction number 69 and the issues in that Direction.
9. They were detailed in the primary decision and they include
   • your circumstances,
   • the value of your proposed courses to your future,
   • your immigration history,
   • your incentive to stay in Australia or return home,
   • if you are using the student visa program to maintain ongoing residence in Australia, and
   • any other relevant matters.
10. It is not intended as a checklist but as a guide for decision makers in weighing up an applicant's circumstances as a whole in reaching a finding about whether an applicant satisfies the Genuine Temporary Entrant criteria.
11. The role of the Tribunal is to take a fresh look at your application, consider your circumstances, and the issues in Direction 69, and be satisfied you are a genuine student who intends to stay in Australia temporarily. You told the Tribunal you had read and understood the primary decision, although when I questioned you I am not certain that you did, however, I read from it and we discussed it in some detail.
12. With the invitation to today’s hearing we asked you to provide evidence of your previous studies, but you failed to do so. However, with the statement you made with your visa application you indicated that you had completed an English course at La Trobe, a Certificate IV in Written and Spoken English at Bayside College, a General English course at TK Melbourne and Certificates III and IV in Commercial Cookery at Metro College.
13. You claim to have completed an English course at La Trobe which was a six-month course. The only evidence provided is that you completed five weeks of that course. There is evidence that you completed the four weeks of the Bayside College course in Spoken and Written English. There is no evidence of the TK Melbourne course, and there is evidence of the Certificates III and Certificate IV at Metro College that you say you did for 13 months but the evidence provided indicates you probably studied those courses for one year and four months. That is the only evidence provided of previous studies.
14. You came to Australia 12 years ago on 28 August 2008 as a 26 year old to study the English course and to go on and study hospitality.
15. Your primary decision refers to courses you have completed and I have just referred to the evidence provided of courses you have completed which in total add up to no more than two years of study.
16. The primary decision refers to the Provider Registration and International Student Management System, known as PRISMS, which shows that since arriving in Australia you had not completed the following courses, and it lists English for Further Studies from 1 May 2008 to 26 September 2009, cancelled due to ‘student deferred course’; Foundation Studies Program from 29 September 08 to 5 June 2009, cancelled as ‘student deferred course’; Foundation Studies from 10 February 2009 - 25 September 2009, cancelled due to ‘non-commencement of studies’; Certificate IV in Spoken and Written English, 18 May 2009, cancelled due to a ‘change in student enrolment’; Certificate III in Hospitality, Commercial Cookery from 7 November 2009, cancelled due to a ‘change in student enrolment’; Certificate III in Hospitality Commercial Cookery, again, from 7 November, cancelled as ‘student failed to commence studies and had outstanding fees’; Diploma of Hospitality from 7 November 2010 to 6 November 2011, cancelled, ‘student failed to commence studies and had outstanding fees’; Advanced Diploma of Hospitality from 11 April 2011 to 2 November 2011, cancelled due to ‘compassionate or compelling circumstances’; Diploma of Management from 6 May 2013 to 4 April 2014, cancelled due to ‘non-payment of fees’; Diploma of Marketing from 26 May 2014 to 6 January 2015, cancelled due to ‘non-payment of fees’; Advanced Diploma of Marketing from June 2015 to June 2016, cancelled due to ‘non-commencement of studies’; Diploma of Marketing from 26 October 15 to 15 February 16, cancelled due to ‘change of course in the same sector’; Diploma of Marketing from February 2016 to May 2016, cancelled due to ‘non-payment of fees’.
17. When I asked you for explanation of the circumstances regarding cancellations due to non-payment of fees and you not starting courses, you provided vague responses that did not answer the question at all, and so the Tribunal does not know why this history is as it is. However, having questioned you about it, the Tribunal is satisfied that it is not the behaviour or the enrolment history of a genuine student. Your enrolment and study history indicates there are some very significant study gaps. There have been a number of periods in Australia when you have not been studying, and when I asked you about that you once again are vague and do not provide any satisfactory answers.
18. Mr Bhatt, all student visas have a condition, called condition 8202, which states that all student visa holders must remain enrolled in a registered course and maintain satisfactory attendance and satisfactory course progress, and it states that gaps should be no longer than two months.
19. You clearly have breached that condition on a number of occasions, which provides the Tribunal with real concerns on a number of grounds, firstly, that you have been here for 12 and-a-half years, and I accept that during that time you held a 457 visa for a year and -a-half, which means you have been here for about 10 years on student visas or bridging visas, claiming your intention was to study. During that time, you have completed studies that have taken no more than two years. I have repeatedly asked you about that seeking an explanation however once again you have provided no satisfactory answer.
20. With your hearing application you did not provide evidence of enrolment as requested. You may have provided evidence of an offer of enrolment, but you provided a statement in which you said your plans were to study Diploma of Leadership and an Advanced Diploma of Leadership and Management, and you stated, "I have received an offer from those courses".
21. You went on to say they are widely focused courses and your goal is to open a restaurant “with almost six years of work experience in hospitality in Australia and: The cooking certificates I have achieved I have gained the crucial skills and knowledge in a commercial kitchen, but I need to learn leadership and management skills that are significant to run any business”.
22. You talk about what you need to know and to deal with as a restaurant owner, and that these courses will provide you with the skills. You say: I will be returning to India after I complete my courses. I am confident that my Australian cookery qualifications, backed up with my leadership and management and my six years of experience will secure a future. I will set up a restaurant of my own in Gujarat where I can stay close to the family.
23. That was the statement you provided with your visa application. However, you never started studying the courses in Leadership and Management and you have now come to the Tribunal and provided new CoEs.
24. Those CoEs show you have enrolled in a Certificate III in Light Vehicle Mechanical Technology, a course that started on 5 October this year, followed by a Certificate IV in Automotive Management then a Diploma of Automotive Management.
25. Now, you say the college have sent you all the forms but you have not sent them back, so you have not started the course yet. So even though the course has been running for the best part of a week and-a-half you have not engaged in it at this stage, and the Tribunal notes that you applied for, and were granted these CoEs on 4 October, which is only a week ago. So, you have now decided that: No, the six years' experience and all the other plans and stories that I told I have now changed my mind.
26. And you say: Yes, I have spoken to some friends overseas who say, you know, the restaurant industry in India is a tough business and, you know, you would be better off opening a garage or being a mechanic or whatever.
27. I can understand people changing their minds but the situation, Mr Bhatt, you are 37 years of age, you now say you want to keep studying until you are over 41 before you return home to do something that is completely unrelated to anything you have ever done before in your past.
28. I do not believe your plans are in any way consistent with previous studies, and I do not believe that setting up in the automotive industry would provide you with any advanced employment prospects than would be available in the hospitality sector where jobs are very well known and generally readily available to anyone who is competent,. You have provided evidence you are qualified as a cook, and you have had a number of years' experience in that field.
29. When I asked you why you do not do your proposed studies at home, you say that studying in Australia will open more doors for you. Well, if you what you intend to do is to open your own business when your studies are done is not particularly relevant. What is relevant is that you know what you are doing when it comes to dealing with motor cars.
30. However, the Tribunal does not accept your explanation of a number of issues that satisfactorily explain your lack of progress, your change in direction, and the situation quite frankly is that your responses have been particularly vague and have not addressed the questions that have been asked of you which lead the Tribunal to find that you are not a credible witness. As I say, I do not believe the course would provide great value to your future.
31. You have been here for 12 years and are seeking a visa that would see you stay in Australia until at least April 2023, which would mean that you would be staying in Australia for some 15 years. While I accept that some educational and career pathways require extensive studies, I am not satisfied that you have established that your future goals fall into this category.
32. The Tribunal finds it difficult to reconcile your extensive proposed stay with your claim you are a genuine temporary resident, but rather believes you are seeking to use the Student Visa program to remain resident in Australia.
33. Regarding the timing of your application the Tribunal notes that your 457 visa expired on 5 June 2018 which happened to be the same day you lodged your student isa application, the timing of which once again leads the Tribunal to the view that your intention is to try and stay in Australia rather than the pursuit of academic progress.
34. While I acknowledge that you have family back home in the form of a wife and daughter, which would provide some incentive to return, you appear settled in Australia, and while you have made a couple of brief trips back home for four or five weeks, you have been here for a long time, and have, it would appear, no real plans to return till 2023.
35. So while you say it is your intention to return home, having been here for as long as you have, and now seeking to stay longer, your words and your actions seem to be different, and the Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of an incentive to return that outweighs the issues we have discussed and your immigration history.
36. The other part of satisfaction of 500.212 is that the applicant intends to comply with any conditions subject to which the visa is granted. Well, as I said, you have without any qualms, significantly breached condition 8202 of your previous student visas on a number of occasions, and while an applicant will say, "Yes, you know, I will not breach visa conditions if you will grant me one more visa", of course that is what someone is expected to say because that is how you are granted a visa.
37. The judgment that I make is based on what has happened in the past and what has happened in the past shows that you have been prepared to repeatedly breach visa conditions and I am not satisfied that you would comply with conditions, if it was granted, that would be attached to that visa.
38. So, having considered your circumstances as a whole, including the issues in Direction 69, I am not satisfied that you are a genuine student who intends to stay in Australia temporarily, therefore I find you do not meet clause 500.212.
39. It is therefore the decision of this Tribunal to affirm the decision under review.

DECISION

40. The Tribunal affirms the decision under review.

Tim Connellan
Member