1418737 (Migration)

[2015] AATA 3387

1418737 (Migration) [2015] AATA 3387 (8 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jograj Singh

CASE NUMBER:  1418737

DIBP REFERENCE(S):  CLF2014/71493

MEMBER:Miriam Holmes

DATE:8 September 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 08 September 2015 at 11:34am

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 16 May 2014. The delegate decided to refuse to grant the visa on 30 October 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 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 12 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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.

7. 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)     …

8. 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.

9. 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.

10. The Tribunal had regard to the following matters in assessing whether the applicant intends genuinely to stay in Australia temporarily.

11. Mr Singh was born in India and is aged 31 years. Mr Singh completed his secondary schooling India in 2002. After completing school he undertook his first year in a Bachelor of Arts course but did not complete the course. Thereafter he undertook a number of short computer related courses, including a Certificate in Information Technology, a Basic Computer course, although Mr Singh could not recall the specific course details, although stated he studied at Excel Institute. The Tribunal noted that he has not set out these other courses at question 30 of the visa application form and that he only referred to his high school education, he replied that the details of these courses he has given to the Department previously. Whilst in India between 2002 and 2009 Mr Singh worked part time on his father’s dairy farm. His father owns 15 acres in India and on the farm he has cattle and cultivates wheat and sugar cane.

12. On 9 March 2009 Mr Singh arrived in Australia. He stated that he travelled to Australia to complete a higher level of study and for new experiences from overseas. His friends came to Australia, so he travelled as well.

13. Between 2009 and May 2014 Mr Singh was enrolled in the following courses:

    ·General English Course – Beginner to Advanced

    ·Certificate IV in Business Management

    ·Certificate III in Automotive Mechanical Technology

    ·Diploma of Business Management

    ·Diploma of Automotive Management

    ·Certificate IV in Business

    ·English for Academic Purposes

    ·Certificate IV in Small Business Management

    ·Diploma of Management

    ·Certificate IV in ESL (Further Study)

14. On 10 February 2009 the applicant was granted a Student (Temporary) (Class TU) (subclass 572) visa which was valid until 30 June 2010. He was granted a student visa to study Business Courses at Austwide Institute of Management at Footscray. Mr Singh completed the ELICOS course at Hales. He planned to study business because this was the advice of his agent that he could study for 12 months. He attended Footscray University to undertake his course but he states it was very racist at the time in 2009 and it was dangerous at the train station. He attended for half the year but many of the classes were at night and he did not want to go there alone. So he did not complete his business course due to the timetable of classes and the risk to his safety in travelling to Footscray.  Mr Singh gave evidence that he could not remember if he transferred to an automotive course at that time whilst he was on his first student visa. If he did transfer to the automotive course he did not complete it because Footscray was a scary area at night time. He stated that if he changed to an automotive course at that time it was because the agent said so, and he followed the advice of his agent – he said that he was confused about what he could do because he wanted to stay in Australia.

15. The Tribunal notes that in a letter dated 28 March 2013 that the applicant provided to the Department in the course of this visa application, he made the following statements. He had trouble with the timetable for the Business course and he requested for timetable changes but they did not agree but offered him an automotive course. Mr Singh opted to do Automotive as a few of his friends were doing it and the College suggested it was a good course. In the document dated 28 March 2013 submitted to the Department he noted that half way through the automotive course he didn’t find it interesting and decided that he made a mistake choosing this course. The Tribunal notes that the reasons set out by Mr Singh for ceasing his enrolment in an automotive course in 2010 differ from the explanation that Mr Singh provided to the Tribunal.

16. Mr Singh’s friends told him that he could do 2 or 3 courses and stay in Australia so Mr Singh decided to undertake other courses and his agent assisted him.  Mr Singh applied for a second student visa. On 12 August 2010 he was granted a second Student (Temporary) (Class TU) (subclass 572) visa until 9 December 2011. This second visa was granted on the basis that Mr Singh would study Business and Management at Australian Education Academy (AEA). According to the letter dated 28 March 2013 he wanted to complete the Diploma of Business and Management as he would use the education back home with some small level company and get a management position. So he changed to AEA and again chose Business Management Course.

17. On 28 March 2011 Mr Singh was reported for unsatisfactory attendance and therefore there is a gap in study from 14 November 2010 until November 2011. Mr Singh told the Tribunal that he ceased studying because AEA changed the location of the course from Springvale to Upfield. He did not attend the course once it moved to Upfield. He stated that he asked AEA if he could continue the course at the Springvale campus but he was advised no. So, as he could not continue with the course he spoke to his agent about a different course. The Tribunal asked Mr Singh what he did between November 2010 and November 2011 and he said that he did study but he cannot get the results but the institute would charge him money to provide him with his results. The Tribunal noted that the Department issued a Notice of Intention to cancel the student visa and in the response in November 2011 Mr Singh stated that he had not been warned by AEA of the potential consequences of his non- attendance and that he had not attended as his grandmother had died in India on 12 March 2011. Mr Singh then told the Tribunal that he gave the department his grandmother’s death certificate and he went into depression and did not go to classes. The Tribunal asked if he had any evidence regarding his depression and Mr Singh said no, but he did go to the doctors. The Tribunal noted that Mr Singh did not return to India for his grandmother’s funeral and he said that his parents did not tell him of the death because they knew he was in Australia and all alone . He said that his friends told him of the death of his grandmother about 2 or 3 weeks after her death and so did not go to the funeral. He said he did not speak with his parents daily. He agreed that he did not complete any course at AEA.  In the letter dated 28 March 2013 submitted to the Department he stated that he subsequently decided to enrol in Business and Management at Australian Learning, Training and Education Centre (ALTEC) because he did not get any results at AEA.

18. In relation to the period between November 2010 and November 2011, Mr Singh did not provide cogent or persuasive evidence as to his reasons for nonattendance. At first he referred to actually attending and he did not have results due to the fees charge by the Institute. Then when the Tribunal reminded him of his correspondence in November 2011, he stated that it was because his grandmother had died and he suffered depression but gave a curious response as to why he did not return to India for the funeral. Overall the Tribunal finds that Mr Singh did not study between November 2010 and December 2011 and did not provide a reasonable explanation for his absence. The Tribunal finds that Mr Singh did not complete any course at AEA during the duration of the second visa.

19. The Department records indicate that on 19 December 2011 the cancellation of Mr Singh’s student visa was revoked because AEA did not comply with reporting guidelines

20. On 23 December 2011 Mr Singh lodged a Student (Temporary) (Class TU) visa application which was granted on 2 February 2012.  This visa was for a period until 11 March 2013. That was the applicant’s third student visa. The applicant confirmed that he enrolled in a course at ALTEC to undertake a certificate in Business course. He cannot recall what day he started the course. He stated in evidence that he commenced the course but in March 2012 he went overseas to see his family and to arrange his engagement and marriage. He only undertook study for 1 month. Then he returned to Australia in April 2012. Mr Singh stated that he recommenced the course and studied until October 2012 when he returned to India for his wedding. He stayed in India until January 2013. His wife did not travel with him back to Australia. In the letter dated 28 March 2013 submitted to the Department he decided to enrol in Business and Management at Australian Learning, Training and Education Centre (ALTEC) because he did not get any results at AEA. However, he also stated that he was unable to concentrate on his studies at ALTEC and his family were pushing him to marry, so he travelled to India to marry.  After he returned from India he returned to the College but they said he had to start the course again. So thought he would apply for a fresh start at Berkeley College in Certificate IV in Business and Diploma of Management.

21. The Tribunal notes that for the duration of the third student visa between February 2012 and March 2013 Mr Singh spent 4.5 months overseas and he did not complete the course at ALTEC. There is no record of any transcript of results for the course undertaken in that period or record of attendance. Mr Singh notes in his letter dated 28 March 2013 that he wasn’t able to concentrate on his studies and he couldn’t complete his studies at ALTEC. Mr Singh stated to the Tribunal that he suffered stressed due to cancellation of visa and was unable to study in that period.

22. On 11 March 2013 the applicant lodged an application for a fourth student visa. In that statement of purpose he stated that he would apply for a fresh start at Berkeley College in Certificate IV in Business and Diploma of Management.  A student visa was granted from 18 April 2013 to 17 May 2014 to study a Certificate IV in Business and a Diploma of Management. Mr Singh provided a completion certificate for Certificate IV in Business from 18 March 2013 to 19 September 2013 from North Melbourne College. At the hearing Mr Singh stated that he did complete the Certificate IV in Business and he provided a copy of the Certificate to the Tribunal. The Tribunal notes the Certificate was issued on 8 August 2014. At the hearing Mr Singh stated that he applied for the fourth student visa because his wife wanted to see Australia so he applied for another visa. He was successfully granted the visa but his wife was not granted a visa, he did not supply relevant documents for her. After Mr Singh was given the Certificate IV he returned to India to see his wife for three months. He then returned to Australia and applied for another student visa and in May 2014 he started the course being the Certificate III in Light Automotive.

23. On 16 May 2014 Mr Singh applied for his fifth Student (Temporary) (Class TU)(subclass 572) visa. This is the current visa application under consideration by this Tribunal. At the time of the application Mr Singh was enrolled to undertake a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Management at Berkeley College Pty Ltd.

24. In the statement of purpose lodged with the fifth visa application, Mr Singh stated that he is taking this course for his career development and he decided to pursue his career in automotive technology as he has a very strong interest in this this profession. In the statutory declaration dated 10 June 2014 the applicant stated that before he was doing business studies but he did not have a clear intention and he believes it is always good to have a trade qualification  especially as a motor mechanic  as many companies are investing in the auto industry in India.

25. At the hearing, Mr Singh told the Tribunal that he wants to open an automotive workshop in India. His parents told Mr Singh that he needed a qualification in a specific field that is why he pursued automotive, He states that he commenced the Certificate III in Automotive in May 2014 and he has completed this course. He cannot provide evidence of this as the Institute wants to charge more fees before they will give him the results. He stated that he wants to complete the Certificate IV course and then return to India. The Tribunal asked why he had pursued Business course for so many years and he stated that he had had misguided advice for agents. He wanted to do automotive but he did not complete it earlier because it was scared in Footscray where the course was held. The Tribunal noted that in his written statement dated 28 March 2013 he stated he did not complete the course because he didn’t find it interesting and decided that he had made a mistake by choosing the automotive course. Mr Singh stated it was a mistake earlier and at that time he wanted to stay but he could not find a job. He now wants to go back and open something in his country.

26. The Tribunal asked Mr Singh how many course he had completed since arriving in Australia. He stated that he completed the English course, the Certificate IV in Business and Certificate III in Automotive. He is unable to provide evidence of the last Certificate due to fees that Institute wanted to charge him.

27. As at the date of the hearing, Mr Singh stated that he had a confirmation of enrolment for the Certificate III and Certificate IV in Automotive. The Tribunal noted that records indicated these enrolments had been cancelled for non-payment of fees.  Mr Singh told the Tribunal he had not been notified of this. The Tribunal asked Mr Singh when he last attended the course and he stated that he had not attended for 2 -3 weeks because he had hay fever. The Tribunal noted that the records indicated the enrolment was cancelled in May 2015 and Mr Singh then stated that he last attended on 2 May 2015. The Tribunal noted that it appeared he had not attended for the last 3 months and he said that in that period there had been a vacation and he was also fast tracked because he went on holidays December 2014 and he attended on weekends. He stated that he finished the Certificate III in June 2015 but he cannot get a statement of results or certificate because of the fees they want to charge him. He said the Institute was blackmailing him to pay a fee for the result. He has not started the Certificate IV but spoken to the principal about getting his Certificate III results.

28. Mr Singh told the Tribunal that his wife had applied for a tourist visa but she had been unsuccesful but could not explain why. His wife wanted to come to Australia just to have a look.

29. Mr Singh has 2 parents in India, and a brother who is married resides in Italy. His wife works as a teacher at a school in India and resides with his parents. The applicant has no land or assets in India. He will receive his father’s property and along with his brother.  When Mr Singh returns to India he helps his father on the farm.

30. Mr Singh has no family in Australia and only has friends in Australia.

31. Whilst in Australia Mr Singh has worked in numerous jobs, since 2009, including in a car wash, a truck wash and pizza shop. He has only held casual jobs but he has met his living expenses form the casual jobs. He has worked casual 4 days a week in some jobs. The Tribunal noted he has generated income in Australia, unlike in India and he said that his family and friends support him and sometimes he gets a good job, like at a truck wash. He cannot remember all the places he has worked over 6 years. He has also borrowed from friends. He also has a credit card debt in the vicinity of $10,000. His father gives him money for his school fees. His wife supports herself and his father also assists her.

1. Mr Singh states that his plan is to finish his studies and then return to India.

2. The Tribunal expressed its concern that Mr Singh has over 6 years undertaken a series of short low level courses and on his own evidence had only completed three courses and had concerns that he held an intention genuinely to stay in Australia temporarily. Mr Singh stated that his family is in India and he returned there regularly and his wife is in India and he does not want to live alone in Australia. He said he applied for his wife to come but she has been unsuccessful and he has never applied for a permanent visa, only student visas, He said his friends are already permanent but he wants to go back.  He said the there was no benefit in staying as he cannot work full time in Australia. He wants one last chance to complete the course in the next 6 months. He said that he will return to India because his wife is there and his family is there and he does not want to live separately from them. He said his intention to return is shown because every year he goes back for 3 -4 months. Near the end of the hearing, Mr Singh stated that he nearly completed all the courses but he could not get the results because of the fees he would be charged and the Institutes knew he needed to get a new confirmation of enrolment and tried to charge a lot of money for the results.

3. Mr Singh stated that he wanted to completed the Certificate IV in automotive in Australia to improve his ability to attract clients and gain experience in India as an automotive electrician. He said an Australian qualification would be highly regarded by employers and customers in India.

4. On balance, the Tribunal is not satisfied that Mr Singh has an intention to genuinely stay in Australia temporarily.

5. The Tribunal accepts that there are a number of factors which indicate that Mr Singh will return to India. He has strong family connections to India, as his parents and wife reside in India and he has no family in Australia. In addition it is evident that he has regularly returned to India for extended periods over the Australian summer months since 2009 – from October 2013 to January 2013, November 2013 to February 2014 and December 2014 to February 2015. The applicant has strong personal ties to India that would serve as an incentive to return to India.

6. However the Tribunal considered there were a range of factors that indicate that Mr Singh did not intend genuinely to stay temporarily in Australia. Mr Singh has been in Australia for 6 years since 2009 and been granted four student visa and has only successfully completed three courses, the Tribunal has the relevant completion Certificate for one of these courses. One of these courses was an English course and the two other courses were in completely unrelated fields – business and automotive. The Tribunal considered that the applicant has had substantially unsatisfactory progress over 6 years. Further, Mr Singh has changed course a number of times and there appears to be no career pathway in his course choices.   Mr Singh travelled to Australia to study business and he states he did this on the advice of his agent. There does not appear to have been any other reason for this course choice. He then transferred to an automotive course. Mr Singh states that he wanted to do this course but he did not complete because it was unsafe in Footscray. Yet, in 2013 he stated he did not complete the automotive course because he did not find it interesting and it was a mistake. Over a number of years Mr Singh then pursued a number of business courses, again he states on the advice of his migration agent and only in 2013 did he complete a business course. Then in 2014 the applicant changed back again to automotive studies and says this was to pursue his career to open an automotive business in India. The Tribunal did not find his reason for changing course compelling in light of the statements he made in March 2013. Further, Mr Singh has had a notable gap period in study, from November 2010 to December 2011 and he did not provide a plausible explanation for this break. It is apparent that during the third student visa Mr Singh was overseas for a substantial period and when he was in Australia for the course he states he was unable to concentrate on his studies and so made no progress in his studies in that period, indeed the course provider requested he start again. The Tribunal also took into account that Mr Singh has enrolled in numerous educational institutions over the 6 year period in a series of short low level courses. It is apparent that Mr Singh has continued over an extended period to enrol in low level short courses in various courses at a number of different institutions and made little progress and had a period of no study and the Tribunal determined, after considering the evidence available, this was for the purpose of maintaining residency. The Tribunal also took into account that Mr Singh has been able to generate income in Australia from holding various jobs over the period of 6 years, yet in India his only economic connection is his father’s farm and having worked part time on the 15 acre property. The Tribunal considered that Mr Singh had stronger economic ties to Australia than in India and this indicates an incentive to remain in Australia.  

7. 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).

8. 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

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

   Miriam Holmes
   Senior Member