1416576 (Migration)

[2015] AATA 3207

1416576 (Migration) [2015] AATA 3207 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DHARWINDER SINGH

CASE NUMBER:  1416576

DIBP REFERENCE(S):  CLF2014/16224

MEMBER:Sean Baker

DATE:29 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2015 at 2:53pm

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 3 February 2014. The delegate decided to refuse to grant the visa on 26 September 2014. 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.    The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(2)(b)(ii) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student. The applicant provided a copy of the delegate’s decision with his application for review.

4.    The applicant appeared before the Tribunal on 17 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

7.    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.

8.    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.

9.    The applicant said that he had arrived in Australia on 5 August 2013, for studies. I asked him what he understood the basis of the refusal to have been and he said that it was because he moved colleges from Brisbane to Melbourne as he had his brother here.

1. I explained the requirements of the genuine student and genuine temporary entrant criterion and noted that I would discuss with him the factors identified in the Direction, and encouraged him to provide anything that he considered relevant to the criterion.

2. I asked the applicant about his circumstances in his home country. He said that he came from Amritsar, that he came here to do management studies and wanted to pursue a career in management. I asked if he could do this in Amritsar and he said he was doing studies over there but there was more of an emphasis on theory rather than practice. He said that in India he had studied a Bachelor of Business Administration, completing two years and having the last semester still to go.

3. The applicant said that in Amritsar his father did farming and his mother was a housewife. He said they owned around 10-15 acres. He said he had one sister there who was married. He said he had not worked as a professional in India but had assisted with farming at home. The applicant said there was no reason why he could not return to Amritsar.

4. I asked the applicant about his circumstances in Australia. he said that his brother was here in Melbourne, and had been studying here since 2009. He said he was not working at the moment but had previously worked during his studies doing a trolley pushing job for UTC. He said that his brother had finished his studies and intended to open a business, maybe a restaurant or a management business. I asked him where and he said maybe in Melbourne. The applicant said he was single and did not have a prospective spouse in India. He said that he had been in Melbourne since 22 December last year and had many friends here also from Amritsar.

5. I noted to the applicant the information in the Departmental decision indicated that he had travelled to Australia under the streamlined Visa Processing arrangement with a study plan which included higher education, which required him to provide less evidence of financial capacity and other requirements for the visa. I noted to him that his moving shortly after arriving to the vocational education stream led me to be concerned that in his case the student visa may be being used to maintain ongoing residence in Australia and that this information may constitute evidence that the student visa program is being used to circumvent the intentions of the migration program. I noted that he had transferred to lower cost and lower workload studies.

6. In response the applicant said that he was doing his studies, many of his friends came to Australia. He had had no knowledge of the 573 / 572 distinction at that time. In Brisbane he had no accommodation and no friends and was just staying with a friend over there. The people he was staying with had some troubles and they kicked him out of the house. The applicant had to stay at the station. He called his brother and told him what had happened. Then when the applicant spoke to a consultant in Melbourne the consultant said they could get him admission here – the consultant did not explain about 573 / 572 and that he would have to change class. This consultant said that the applicant could complete a certificate III in painting and then pursue a certificate IV in management. He said he was studying painting and management until his 573 visa was cancelled.

7. I discussed the value of the course to his future with the applicant. I asked why he had changed from his proposed courses in management culminating in a Bachelor of Business to painting and decorating. The applicant said that his consultant told him he had to do this first and then management. I asked if he had just accepted this and he said that he had no other option, and he used to love painting at school, he was interested in drawing and other things. I noted to him that this change of study pathway without clear explanations why he chose to change caused me to be concerned that he had enrolled in these courses to get a migration outcome and remain in Australia.

8. I noted to the applicant that the delegate’s decision reported information that when TAFE Queensland had refused to issue a release letter he had then stated to TAFE Queensland that he would no longer study and depart Australia. He conceded he had said this, as TAFE Queensland told him he had to complete his studies and would not give him a release letter, so his consultant told him one trick, to tell them that he was going to leave and then they will give you the release letter. I asked if he was telling me leaving was not his intention and he said his intention was to study here but because he wanted the release he had to tell them that he wanted to leave Australia so he could get the release letter. I noted to him that I was very concerned that he was saying he had misrepresented his intentions to his education provider. He said that he did not say anything wrong, if he had had to go at that time he would have left. I noted that this caused me concern that he had engaged in this to maintain ongoing residence and may lead me to doubt that he would return to India but would be more likely he would remain here with his brother and his proposed business.

9. The applicant said that he wished to study courses in management as he had knowledge of management. I asked what specific courses and at what level and he said he was ready to study, at the 573 or 572 levels, it did not matter, he wanted to study. He said that now he has knowledge of this distinction and SVP or non-SVP courses. I noted that I was not sure I accepted that he did not know what SVP meant and the distinction between vocational and higher education study pathways. He said he had studied business administration in India and his friends were studying here and he told his agent and his agent issued the visa, he had no knowledge of these things. I noted to him that I may not accept this as it was his visa and his responsibility to be aware of the visa and conditions on it. I noted I may not accept that he would just do what his agent or consultant told him to do.

10. I asked about the value of the course to his future given that his Certificates III and IV were significantly lower than his previous level of study. He said when he had done two years of undergraduate study he had gone to see the consultant in India and he said that his year 12 completion was the basis for him to go into the higher education system in Australia and that these two years don’t count.

11. I asked the applicant what his future plans were. He said he planned to complete his management studies and then go back to India and start a business over there. I asked what kind of business and he said as they have their own farm land, he could open up some business related to the farming; Dairy farming, or perhaps a restaurant. I asked how management qualifications related to opening up a farm and he said the workers will do the work, and as a manger he needed to operate and manage the business. He said that he has knowledge of farming anyway.

12. I noted to the applicant that he had told Immigration that his intention was to have a career in construction, painting and decorating, which differed from what he had told me. He said that he had told them his main motive was management and this was his pathway to management. I asked how construction fitted with his plan he had told me today that he wanted to set up a dairy farm or a restaurant. He said that that was not his main motive, he had to do this to go to management.

13. I discussed the applicant’s immigration history with him. I asked if he had sought review of the cancellation of his 573 visa. He said he had not done for his 573, immigration had told him as he changed college he did not meet certain requirements.

14. I noted that a factor I had to have regard to was the amount of time the applicant had spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant had undertaken a series of short, inexpensive courses, or had been onshore for some time without successfully completing a qualification. I noted to him that his circumstances appeared to have some similarities with this factor, and that I was concerned he had cancelled his enrolment in a Bachelor course, generally very expensive, and transferred to a series of low cost and low workload vocational courses. He said that his parents can pay for his degree and that’s why he paid for his degree, as expense did not matter to them.

15. I asked if there were any other relevant matters he wished to raise. He said he would like to complete his studies, 573 / 572, it did not matter. He said he had left studies in between and if he goes back now he would have nothing in his hand to show for his time. he said he had his marks for what he did in India, only the first year, he got pass marks and he could not complete his studies there as there is too much of a gap. He said he requested that he would like to complete his studies here.

16. I have considered his statement of purpose and explanation of adverse information on the Departmental file, and the offer letters and CoEs provided to the Department and Tribunal.

17. I have considered the applicant’s circumstances in India and Australia, the value of the course to his future, his immigration history and other matters relevant and that he raised. I have considerable concerns with the applicant’s claims. My main concerns are that the applicant has not adequately explained why he chose to leave his previous study pathway of studies culminating in a Bachelor of Business and chose to pursue courses in painting and decorating. In the course of exploring this the applicant said that he had used a ‘trick’ suggested by his migration agent and told TAFE Queensland that he was ceasing studies and returning to India, which he said was not his intention at that time. This causes me deep unease; that the applicant has admitted to misleading his education provider about his intentions and course of action when it suited him to provide him with his desired outcome. Further, the applicant was unable to explain clearly why he had chosen to study painting and decorating. I do not accept that he would make this decision solely on the basis of advice from an agent. Further, he was unable to explain in any clear way why he had claimed to the Department that he wished to pursue a career in construction, painting and decorating, but told me that he wished to establish a dairy farm or a restaurant. He claimed that the unifying purpose was his management career. I do not accept this explanation as it does not explain these two radically different career trajectories. I find his claims about his future plans unconvincing in this context. He continued to state that he wished to study but that he did not mind if he studied at the 572 vocational levels or 573 higher education level. I find this lack of focus in relation to exactly what studies he intends to complete leads me to doubt his claims that he wishes to study.

18. Given these concerns, I consider that the evidence before me is indicative that the applicant is intending to use the student visa program to maintain ongoing residence in Australia rather than a primary focus being on studies. The applicant was unable to explain the value of his current and proposed course to his future in any but the vaguest of terms. I find that these are significant indicators that the applicant may not be a genuine temporary entrant.

19. I have taken account of his evidence in relation to his and his families circumstances in India; that they own a farm, that the balance of his family is there, that he would pursue a business allied with that, that they have money and financial matters are not a concern and that there is no unrest or other reason why he cannot return. I give these factors less weight than the significant and concerning factors set out above. Further, I have taken account of his circumstances in Australia and that he has a brother here who he states has finished studies and now wishes to open a business, possibly in Melbourne. Added to my above concerns, I consider that the evidence before indicates that in this case the applicant is using the student visa program in an attempt to circumvent the intentions of the migration program and to maintain ongoing residence in Australia. I give these concerns greater weight compared to his circumstances in his home country and factors in his favour about his circumstances here. He was unable to speak in more than generalities about the value of his current and proposed course to his future.

20. I have had regard to the applicant’s explanations and evidence but I find that the facts of the applicant’s concerning immigration history and change of courses, his willingness to mislead his education provider about his intentions, his inability to explain his very different claims of future careers, and his potential circumstances in Australia indicates that the student visa program is being used in the case of the applicant primarily to maintain residence in Australia. I have considered the applicant’s circumstances in his home country, and his relative circumstances in Australia, and when I consider these against the above concerns and findings, I give these factors less weight in establishing his claim that he will return to India or a third country at the completion of his proposed study.

21. 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).

22. 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

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

Sean Baker
Member