1505605 (Migration)

[2016] AATA 4856

1505605 (Migration) [2016] AATA 4856 (7 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjeet Singh

CASE NUMBER:  1505605

DIBP REFERENCE(S):  BCC2015/821266

MEMBER:Alison Mercer

DATE:7 September 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 07 September 2016 at 11:30am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Independent ELICOS Sector – Dependent spouse – Separated for 12 months – Career and employment prospects in India – Inaction by former migration agent

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 1 Item 1222, Schedule 2 cl 570.223

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. Where used in this decision:

   ·COE refers to Certificate of Enrolment in a course of study;

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

   ·VET refers to Vocational Education and Training;

   ·A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   ·The Department refers to the Department of Immigration and Border Protection;

   ·Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   ·IELTS refers to the International English Language Testing System.

3. The applicant applied to the Department of Immigration for the visa on 13 March 2015. The delegate decided to refuse to grant the visa on 7 April 2015. 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).

4. The delegate refused to grant the visa because the delegate was not satisfied that the applicant met the requirements of cl.570.223(1)(a) of Schedule 2 to the Regulations. This clause required that the delegate was satisfied that the applicant was a genuine applicant for entry and stay as a student and genuinely intended to stay in Australia temporarily, having regard to the applicant’s circumstances, immigration history and any other relevant matter. The delegate noted that the applicant arrived in Australia in May 2009 as the holder of a subclass 572 (Vocational Education and Training sector) student visa as the dependent spouse of his wife, the primary visa holder. He was granted 2 further subclass 572 visas on this basis, on 25 October 2011 and 13 December 2012.  He then applied for a subclass 570 (ELICOS) student visa in his own right on 9 December 2013.  On 4 January 2014, his agent Tanveer Singh advised the Department that the applicant had been divorced on 12 May 2013, which indicated that the applicant had not complied with condition 8516 on his dependant subclass 572 visa (this condition required him to continue to be a person who would satisfy the primary or secondary criteria for the grant of the visa).  The delegate concluded that he was not satisfied that the applicant genuinely intended to stay temporarily in Australia as a student.

5. The Tribunal received a review application from the applicant on 24 April 2015.  It was accompanied by a copy of the delegate’s decision.

6. On 28 June 2016, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 22 July 2016.  The applicant was also requested to provide a copy of his current Confirmation of Enrolment (CoE), proof of his previous studies in Australia (including an explanation of any gaps in enrolment) and a written statement addressing the issues of whether he was a genuine temporary entrant as a student, as referred to in Ministerial Direction 53 (a copy of which was provided for reference).

7. The applicant appeared before the Tribunal on 22 July 2016 to give evidence and present arguments.  He also provided several documents, including:

   ·statement by the applicant dated 22 July 2016;

   ·a bank statement for the applicant for August 2013;

   ·copy of email from Tanveer Singh dated 24 February 2014 to the applicant stating that his secondary visa was still active, in response to the applicant’s email of 16 January 2014 inquiring about whether there was any response from the Department;

   ·CoEs for the applicant’s (former) wife, Davinder Kaur, for Certificate IV in Hospitality (Commercial Cookery) (1 August 2011 to 28 February 2012) and Diploma of Hospitality (15 March 2012 to 2 October 2012);

   ·divorce order dated 11 April 2013 for the applicant and his (former) wife, Davinder Kaur;

   ·invoice from Barkly International College dated 12 January 2014 for Certificate III in ESL for the applicant; and

   ·Visa Entitlement Verification Online (VEVO) entitlement check result for the applicant dated 24 February 2014 indicating that the applicant held a subclass 572 visa as a secondary applicant, the grant date of which was 13 December 2012 and the expiry date of which was 15 March 2015.

8. In his statement, the applicant confirmed that he was granted a student dependent visa on 22 May 2009 offshore, as the spouse of Ms Davinder Kaur, which was valid until 22 September 2009, and that he had 2 visa extensions while in Australia, the first on 25 October 2011 to 2 December 2012 and from 13 December 2012 to 15 March 2015.  The applicant said that by January 2013, he noticed a change in the attitude of his wife and that their relationship had soured.  He stated that he tried to sort things out with her but his wife wanted some time off to plan and organise her life, and that one day they had a fight and she wanted him to sign a paper, which he was told needed to be submitted to the Department.  The applicant said that he signed the paper but was unaware of its true nature.  He and his wife decided to live separately with the hope that maybe with time, things would be different.  The applicant stated that he was shocked to receive a letter in April 2013 that informed him that he had been divorced on 11 April 2012.  He maintained that he knew nothing of divorce proceedings and was unaware that his wife had filed for divorce as he had not received any Court correspondence nor appeared in Court.  He assumed his wife must have got all letters redirected. 

9. The applicant further stated that his knowledge of the visa process was limited so on the advice of friends, he went to see Tanveer Singh, a migration agent based in Carnegie, to get advice about his migration options after his divorce.  The applicant said that he chose Mr Singh as Mr Singh spoke Punjabi and understood the applicant’s situation.  Mr Singh told him that his former wife would inform the Department of their marriage breakdown so the applicant did not need to take any action. Mr Singh also told the applicant that the Department would not cancel his subclass 572 dependent visa straight away and he would be given some time to explain his circumstances to the Department if it issued a notice to him about his visa.  He was told to wait for this by Mr Singh, but in fact, he received no communication from the Department.  The applicant stated that he remained worried about his visa so contacted Mr Singh again. He states that Mr Singh advised him to lodge a new student visa application in his own right.  On 6 August 2013, he provided all the necessary documents (including his passport details, term deposit and divorce certificate) to Mr Singh.  He remembered also signing a student visa application form and a form 956, and he transferred $2,500 to Mr Singh to lodge the application on that date.  The applicant said that he was under the impression that once the information was supplied to a migration agent, it was the agent’s responsibility to update the Department.  He further stated that after a few days, he tried to contact Mr Singh to get an update on his visa application but his repeated calls to him went unanswered. 

10. The applicant said that on 17 January 2014, Mr Singh emailed him to advise that he had been granted a student visa and wanted the applicant to collect the visa grant letter from his office.  When he went to collect the letter, the staff told him that he had to wait for Mr Singh to provide the letter and he was currently overseas.  The applicant said that he kept calling the office in the interim but did not get any satisfactory response. The applicant said that on 17 February 2014, Mr Singh emailed him to advise him that his visa application had been refused.  The applicant said that he was also shocked to learn that, despite providing all required documents to Mr Singh on 6 August 2013, Mr Singh did not lodge the student visa application until 9 December 2013.  Further, there was no mention of him having a migration agent in his application, despite having signed a form 956 and paid fees to Mr Singh.  Moreover, he noted that the agent had put an incorrect address for him in the application and he did not know whether or not the Department sent correspondence to that address. 

11. The applicant said that he was anguished and depressed by this turn of events and went to see another migration agent after the visa refusal, and was advised to lodge a review application with the Tribunal.  The applicant returned to Mr Singh to lodge the review application on the basis that Mr Singh had all his details and documents.  The applicant said that Mr Singh told him that his subclass 572 student dependent visa was still active and therefore he recommended that the applicant did not apply to the Tribunal and simply wait until March 2015 to apply for a new visa in his own right.  The applicant stated that he had some doubts about this advice, so he rang the Department and confirmed that he did still hold a visa which would expire on 15 March 2015.  He therefore did not lodge a review application with the Tribunal in relation to the visa refusal. Accordingly, when his current student dependent visa was due to expire, he lodged for a new student visa on 13 March 2015, which was then refused because he was considered not to be a genuine student and had not complied with condition 8516. 

12. The applicant stated that he had been deceived by his ex-wife and also been wrongly advised by his migration agent.  In addition, he did not receive any communication from the Department about the cancellation of his visa, as he had been led to expect.  He stated that all of this had painted him as a culprit with the Department for not advising of his divorce, but this was not the case and he reiterated that he had tried to do the right thing all along.  He stated that he had lived a substantial part of his life in Australia and had not gained anything because of all these problems.  He emphasised that he wanted to obtain an Australian qualification and he asked the Tribunal to grant him a student visa so that he could gain necessary skills to earn his living in life.

13. The applicant appeared before the Tribunal on 22 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

14. At the hearing, the applicant confirmed the contents of his statement. In response to the Tribunal’s query, he said that he did not have a current CoE because he did not hold a student visa.  He told the Tribunal that he had been enrolled in an ELICOS course at the time that he made his student visa application in March 2015 and did start this course, but after his visa was refused, his CoE was cancelled and he was told that he could not study for more than 3 months. 

15. The applicant said that his ex-wife had been studying Business when he came to Australia with her.  He stayed at home but also worked casually as a cleaner and delivering bread.  He learned some English during this time but not a lot.  He had not learned much English before coming to Australia. 

16. The applicant said that he was from Jalandhar in the Punjab in India, where his family were involved in agriculture (principally wheat and rice).  He had 1 sister in the UK and 1 younger brother who was also in Australia, studying automotive technology.  The applicant said that he had not remarried after his divorce from Ms Kaur in 2013.  Prior to coming to Australia with her, he completed secondary schooling and worked on the family farm. When asked what he and his wife’s intentions were when they came to Australia for his wife to study, the applicant said that they thought that she would do cooking as a course and they would maybe apply to stay here. 

17. The applicant reiterated the sequence of events leading to his divorce and reiterated that it was engineered unilaterally by his (ex) wife.  He stated that he sought advice from the agent Mr Singh and was advised that the Department would most likely write to him advising that his visa would be cancelled and he would have 28 days to either depart Australia or make another visa application.  However, after 3 or 4 months, this had not happened so he went back to Mr Singh and was told to apply for an ELICOS course and visa, because he did not have IELTS results that would enable him to study anything else. He stated that he did not want to return to India with nothing to show for his time in Australia, even though he originally came as a dependent spouse.  He said that he did not enrol in any course earlier because while he and his wife were still together, he had to support her.  When asked what benefit an Australian qualification would have for him, given that it appeared that he could return to work in the family business in India at any time, the applicant said that his parents wanted him to improve his situation. They did not have a large amount of land any longer so they wanted him to get better skills so that he could potentially move into a different career from agriculture.  The applicant said that he hoped to be able to study automotive technology and then return to India to establish his own business in this field there.  However, he first needed to do an ELICOS course to be able to undertake further study, according to the advice of the migration agent.

18. When asked about the fact that he had not studied between April 2013 and March 2015, despite holding a subclass 572 visa, the applicant said that he did make an earlier subclass 570 (ELICOS sector) student visa in August 2013.  He reiterated the circumstances set  out in his statement, to the effect that he had paid for, and given all relevant documents, to his agent Mr Singh to make this application but it appeared that this was not done until late 2013.  He said that he did not know what caused Mr Singh to delay lodgment. He reiterated that he did start the ELICOS (Certificate III in ESL) classes in August 2013 but did not complete it because the college said he could not continue studying without a subclass 570 visa. Subsequently he received a text message from the agent in January 2014 that his visa had been granted but when he went to the agent’s office to collect the grant letter, he was told to come back when Mr Singh was back from overseas.  Later, when he saw Mr Singh, Mr Singh told him the visa application had been refused and another agent advised him to appeal this to the Tribunal.  Then Mr Singh advised him that he still held a subclass 572 student visa as a dependent.  

19. The Tribunal raised with the applicant the fact that it might conclude that he had applied for a student visa in his own right to stay in Australia simply because he had better economic opportunities here, and not because he was a genuine student.  The applicant conceded that it could look like that but stated that he genuinely wanted to up-skill himself and that he did not do so earlier as his wife was studying and he was expected to support her and then they planned to return to India and start a business together.  However, everything changed for him after their divorce and he began to make plans for his own future.  What he had told the Tribunal was genuine and he now asked for a chance to pursue studies here in his own right.

20. Following the hearing, the applicant emailed to the Tribunal a copy of a letter from the Department dated 13 February 2014 refusing to grant him a subclass 570 (ELICOS) student visa. The ground of refusal is stated to be that the delegate is not satisfied that the applicant met cl.570.235, which requires him to have substantially complied with the terms of any previous visa held.  The delegate concluded that as the applicant had been separated for 12 months prior to his divorce in April 2013, yet continued to hold a subclass 572 visa as a dependent spouse, he had failed to comply with condition 8516 of that visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is subclass 570.

23. The issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)     …

24. 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.

25. 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.

    The applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future

1. The Tribunal is satisfied that the applicant is from Jalandhar in the Punjab in India, that his immediate family there consists of his parents, who own agricultural land there, and that he also has 1 sister in the UK and 1 brother who is in Australia as the holder of a student visa studying automotive technology. The Tribunal is further satisfied that at the time that the applicant came to Australia in May 2009, he was married to Davinder Kaur, the principal holder of a subclass 572 (Vocational Education and Training Sector) student visa in relation to which the applicant was granted his visa as her dependent spouse.  The Tribunal is satisfied from the documentary evidence that the applicant and Ms Kaur were granted a divorce in Australia on 12 May 2013, and that the applicant has not remarried to date.  The Tribunal accepts the applicant’s evidence that, prior to coming to Australia at the age of 25 with Ms Kaur, he completed secondary school in India and worked with his parents on the family’s land.

2. While the Tribunal acknowledges that the presence of the applicant’s parents in India constitutes a strong tie and incentive for him to return there, this must be considered in the context that the applicant has returned to India only twice since coming to Australia with his wife in May 2009 (for approximately 4.5 weeks in late 2010 and approximately 5 weeks in early 2016).  The Tribunal considers the lack of return visits to India by the applicant  undermines any contention that his family there has provided, or would provide, a strong incentive for him to return there at the conclusion of his proposed study, particularly since he elected not to return there even after his divorce.

3. It is not disputed that the applicant’s original intention in coming to Australia was not to study, but to accompany his wife, who was intending to study here.  The Tribunal accepts the applicant’s evidence that his belief and intention in coming to Australia was that his wife would study and he would work, within the terms of his dependent student visa, to support them.  The applicant now seeks a subclass 570 (ELICOS) visa in the hope of completing an English course and then applying for a further student visa (or visas) in his own right, most likely in the Vocational Education and Training Sector in the field of Automotive Technology.  He asserted that this was with the approval of his parents, who wished him to acquire skills other than in agricultural work, and to return to India in due course with an Australian qualification.  He denied that his motivation was simply or merely to prolong his time in Australia.

4. As discussed with the applicant at hearing, the Tribunal is unable to see what realistic value an ELICOS course and (potentially) courses in Automotive Technology would have for the applicant.  His evidence was that he was working in the family agricultural enterprise prior to coming to Australia for a number of years, and he was unable to give a plausible explanation as to why he could not return to this field now, rather than spend additional time and money in Australia obtaining a qualification in relation to which he has no background or experience.  The Tribunal notes that the applicant is not a recent school leaver, but a 32 year old man who has been in Australia since mid-2005, a period of over 11 years at the time of the Tribunal’s decision.  While the Tribunal accepts that there might be some theoretical benefit to the applicant in improving his English and studying a vocational course in Australia, it considers that the overwhelming impression given by the circumstances of his case is a desire to remain in Australia for as long as possible, including after the breakdown of his marriage.

   The applicant’s immigration history, including previous applications for an Australian visa or for visas for other countries, and previous travel to Australia or other countries

5. The Tribunal does not have any information in relation to the applicant’s visa applications and/or travel to other countries (if any). 

6. In relation to his Australian immigration history, it is not disputed that the applicant’s original intention in coming to Australia was not to study, but to accompany his wife, who was intending to study here.  The Tribunal accepts the applicant’s evidence that his belief and intention in coming to Australia was that his wife would study and he would work, within the terms of his dependent student visa, to support them.  As noted above, the applicant said that this was essentially what did happen until early 2013, when the relationship encountered difficulties, leading to them living separately, which he did not consider permanent at the time.  The applicant maintained that he signed some correspondence some time after this at his wife’s request but was unaware that these were divorce proceedings until he received the final divorce order in April 2013.  He further maintained that he did not advise the Department of his divorce since his then migration agent advised him that his former wife would have already done so.  The Tribunal has some reservations about the applicant’s explanation, in that it considers it implausible that the applicant was completely unaware of the fact that his former wife had applied for a divorce until April 2013 or that he did not regard their separation prior to this date as permanent.  It considers that the applicant had an incentive not to inform the Department in order to continue to hold a student visa as a dependent, permitting him to continue living and working in Australia.

7. However, as against this, the Tribunal acknowledges that aspects of the applicant’s account are corroborated by copies of correspondence between the applicant and his former migration agent, Mr Tanveer Singh, and other documents (such as the applicant’s bank account statement showing a payment to Mr Singh in August 2013 for lodgment of a visa application, and proof of payment of fees to Barkly International College in the same month for a Certificate III in ESL). This gives credence to the applicant’s oral and written evidence that he was concerned about his visa status after receiving the divorce papers in April 2013, and undertook, on the advice of this then agent, to lodge a subclass 570 (ELICOS) visa application in his own right in August 2013.  The reasons why this application was not in fact lodged by the applicant’s agent until December 2013 are unclear to the Tribunal and the applicant maintained he assumed it had been lodged earlier.  The Tribunal is unable to make any definitive findings on the reason for the apparent delay.  However, what is clear is that this application was refused by the Department in February 2014 on the basis that an officer of the delegate found that the applicant did not meet cl.570.235, which required her to be satisfied that the applicant had substantially complied with the conditions of his previous visa.  As set out in the delegate’s decision of 13 February 2014 (a copy of which was provided to the Tribunal by the applicant), the delegate concluded that the applicant had been separated from his wife for approximately 18 months and divorced for nearly 8 months) at the time the subclass 570 visa application was made in December 2013, and thus he had not complied with condition 8516, which required him to continue to satisfy the requirements for the grant of a student visa (in the applicant’s case, to be a dependent spouse).  The Tribunal accepts that the applicant sought further advice from his then agent, who ultimately advised him not to lodge a review application in relation to this decision but to make a fresh subclass 570 (ELICOS) visa application as he still held a subclass 572 visa valid until 15 March 2015.  He made the subclass 570 (ELICOS) visa application which is the subject of this review application on 13 March 2015.

8. The applicant argued in his written and oral evidence that he had not sought a divorce but that this had been engineered by his former wife, and that he tried his best to resolve his situation by making a student visa application in his own right in a timely manner after he was notified of the divorce but was essentially the victim of poor advice and/or inaction by his former immigration agent.  The Tribunal has some sympathy for the applicant, particularly in regard to the evidence he has provided that points to the fact that he did take action in August 2013 to make a student visa application in his own right, and did not himself delay this until December 2013.  However, the fact remains that the applicant has now been in Australia for 11.5 years. Although he commenced English studies in August 2013, he did not proceed with these due to his inability to be granted a subclass 570 visa to date. Since his divorce in April 2013, he has been in Australia for over 3 years without studying and is now 32 years old.  As noted above, the Tribunal does not consider that he was able to plausibly articulate what benefits to his career or employment prospects in India would flow from studying English and/or automotive technology in Australia given his previous involvement in the family farm, and his ability to return to this now.

9. Any other relevant information provided by the applicant, or available to the decision-maker, including information that may be beneficial or unfavourable to the applicant

10. The Tribunal has considered the totality of the applicant’s circumstances and considers that his motivation for study in Australia is predominantly to maintain ongoing residence in Australia, and not because it would be of genuine benefit to him or his employment prospects in India. 

11. 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.570.223(1)(a).

12. The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. 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

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

    Alison Mercer
    Member