1421317 (Migration)

[2016] AATA 3230

1421317 (Migration) [2016] AATA 3230 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Siddharth Guru

CASE NUMBER:  1421317

DIBP REFERENCE(S):  BCC2014/1176076

MEMBER:Adrian Ho

DATE:9 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2016 at 5:32pm

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 11 May 2014. The delegate decided to refuse to grant the visa on 10 December 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(1)(a) of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 9 February 2016 to give evidence and present arguments.

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

6. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Subclass 580

8. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

9. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

10. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    Genuine Temporary Entrant

11. A major 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)     …

12. 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.

13. 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.

14. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

15. The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

16. The applicant gave evidence that he has had 3 student visas for Australia and arrived in Australia from India in 2009 on a one year student visa to study a certificate III in automotive mechanical technology and a diploma of business management.  He said these two courses spanned two years but he was only granted a visa of 1.5 years.  He said he therefore had to propose the diploma of business management again for his second student visa which expired in 2011 and he says he completed that course.

17. He said in 2011 he applied for his third student visa and proposed an advanced diploma in automotive management, a one year course.  He said it was an advanced diploma but agreed, when shown folio 9 of the Department file (the diploma he submitted), that it was a diploma.  It was suggested that it was concerning that he did not appear to remember courses that he had completed while holding a student visa.  He said it was a mistake that he could not remember.  He said he didn’t propose any other course for that visa.

18. He said he applied for his fourth student visa in 2013.  He originally told the tribunal he had only had three student visas for Australia.  He said, for this fourth student visa, he proposed study in ‘business management and marketing’, but didn’t know or remember if this was one or two courses.  He was granted a visa until May 2014 for one year of studies.  He said he attended class for 8 weeks and then stopped and said he had no particular reason for stopping.  He felt that the study was ‘not helpful’ to his automotive studies and he needed time to think about what he wanted to do.  He said he worked during the remaining 10 months of the visa and did personal things.

19. He said he then made in May 2014 the student visa application which is the subject of this review.  He said he does not remember the names of the course or courses he proposed when making the visa application now under review, but there were ‘management’ courses.  When asked again he said he could not provide any more detail about the study he had proposed when making the visa application.

20. He said he was granted bridging visas A and B since applying for the visa and neither of those visas prevented him from studying.

21. He said he has done no study in a registered course since May 2014.  He said he did not want to spend money on course fees when he was waiting for Department processing and the tribunal review process.  He was informed that the tribunal would have considered it favourably had he taken the opportunity to study while holding a visa which was did not prevent him from studying, but in the circumstances, as no study had been undertaken, the tribunal could not take this favourably into account.

22. The tribunal suggested it was of concern that he could not remember the course or courses he had proposed for the visa.  He made a vague claim that he had been unwell, was on unspecified medication, and was not diagnosed.  As suggested to him, the vagueness of the claim does not permit the tribunal to give it material weight.

23. He said he now wishes to study a certificate IV in the automotive area which was a one year course.  He said he had not proposed that course when he applied for the visa.  He was then asked what value was held in the courses which he cannot quite remember which were proposed with the visa application and were now no longer proposed.  He said he did not want to do marketing.

24. It was pointed out that he came to Australia in 2009 to study a certificate III in an automotive area and now, almost 7 years later, he proposes the certificate IV in the same field.  He was asked if he considered that a reasonable level of study progression.  He said the certificate IV was really useful for his future and he wanted to leave Australia.

25. He was referred to Direction 53 and asked if he wished to highlight any circumstances here or in India.  He said he was the only son and asked for another chance so he could study and open a ‘production house’, where the government would give him a loan to open an automotive business.

26. He was asked if he wished to say anything more about the value of the course to his future.  He said the course was very valuable to his future.

27. He was asked if he wished to say to add anything more about his immigration or study history.  He said he had studied hard.

28. He was asked if there were any other matters he wished the tribunal to consider.  He said he had made mistakes and could not amend them, but he wished for another opportunity.

29. He was asked if he wished to say anything further about having not provided a current COE, especially given that on the evidence he appeared not to meet cl.572.222 and its equivalents.  He said he had nothing further to say.

    Findings

30. The applicant has a poor recollection of his immigration and study history, spanning almost 7 years.  He does not clearly recall the course or courses he proposed for the visa application that is now before the tribunal.  He states at hearing that he wishes to study a certificate IV in the automotive area, which he had not proposed when he made the application.

31. Despite being asked to provide a current COE seven days before the hearing, he has not, and said he does not have a current COE.  On his evidence, he has not studied since applying for the visa in May 2014.  The fact that he cannot remember the study he proposed when he applied for the visa underlines the lack of value he sees in the study he proposes to the government.  Now almost 7 years since he first arrived to undertake a certificate III in an automotive area he proposes, orally, an increment to his studies to the certificate IV level.  In the intervening years he completed courses of a general nature in the VET sector which on his evidence holding value, but limited value to his future.  He agreed at hearing that his study progression was less than desirable. 

32. His stated plan is to open an automotive business in India and he says the certificate IV is integral to that plan.  He said he had not proposed that course when he applied for the visa and as suggested to him this casts some doubt over the value of the course and the plan it is said to support. 

33. The tribunal pointed out to him that as the holder of bridging visas which carried no condition preventing him from study, he had had an opportunity to demonstrate to the government, since making the application in May 2014 that he was committed to studying courses of value, by in fact commencing study and maintaining enrolment.  He has not done so and said that he has spent, now almost two years, reflecting and researching his future options while living in Australia.  The tribunal finds unconvincing his excuse that he would rather not expend money when it was uncertain if he would be granted a visa to complete a course.  Rather, the evidence suggests that while his status is lawful, he prefers to work, and not study.

34. Prior to that, even while holding a student visa, the applicant only studied for 8 weeks where he was granted a visa for one year of studies.  In his evidence at hearing, he also did not recall the course that he had proposed or the course that he studied for 8 weeks.  He said he had no particular reason for not continuing his studies for the remaining 10 months of the student visa granted to him.

35. Given the opportunity to draw the tribunal’s attention to other considerations contained in Direction 53 the applicant in reply did not materially add to the lengthy discussion that had already taken place. 

36. The tribunal accepts that he is the only son of his parents and he has close family and friends in India.  In almost seven years he has managed to maintain those relationships from a life lived in Australia and now proposes yet further stay in Australia.  On the evidence, the tribunal does not find those connexions to offer him significant inducement to make his stay in Australia a temporary stay.

37. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, and having considered the considerations laid out in Direction 53 as they are engaged by the evidence, 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).

38. 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.

    Enrolment

39. The applicant’s evidence at hearing was that he had no current COE and no current enrolment in any relevant course, despite being asked to provide a current COE seven days before the hearing.  The applicant does not meet cl.572.222 and its equivalents for other subclasses. As explained to him, this is an entirely separate and sufficient reason for him not to be granted the visa.

40. 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

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

    Adrian Ho
    Member