1506184 (Migration)

[2016] AATA 3463

1506184 (Migration) [2016] AATA 3463 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanjit SINGH

CASE NUMBER:  1506184

DIBP REFERENCE(S):  BCC2015/680000

MEMBER:R. C. Titterton

DATE:3 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 March 2016 at 4:18pm

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 March 2015. The delegate decided to refuse to grant the visa on 17 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).

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 because she was not satisfied, having considered the applicant’s evidence in relation to the genuine temporary entrant criteria, that the applicant satisfied clause 572.223(1)(a).

4.The applicant appeared before the Tribunal on 21 November 2015 by telephone to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6.     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.     As noted, the applicant appeared at the hearing by telephone. He confirmed that he was born in India in 1991, and was 24 years old. After completing secondary school in India, he then came to Australia to study in 2009, initially to study English, prior to commencing a certificate course in Automotive Mechanical Technology (Light Vehicle).

10.      The applicant confirmed that he is currently enrolled in the Diploma of Hospitality, which he hopes to complete in April 2016. He has been approved for the Advanced Diploma of Business from May 2016 to November 2017. He sees himself pursuing a career in the hospitality industry, either in Australia, or India, or in Canada, where his sister lives.

11.      Accompanying the applicant’s application were many documents relevantly including documents demonstrating the applicant’s successes in a wide variety of courses, and a included a work reference from a director of the Gatton Indian Restaurant.

12.      When his application was initially assessed the Department asked the applicant to provide information addressing the Genuine Temporary Entrant Criterion. A statement was provided on 1 April 2015. No copy of that statement appears in the Tribunal file, but its substance appears sufficiently in the delegate’s decision of 17 April 2015, a copy of which was provided to the Tribunal by the applicant.

13.      A further statement addressing the criterion (along with a large number of other documents, again providing a lot of information about his courses) was provided to the Tribunal on or about 23 October 2015. In the statement the applicant says, in summary:

(a)throughout his studies he has complied with his conditions and attended his course lectures and tutorials;

(b)he is currently studying at the Australian Institute of Technology and Management. He says the Certificate IV in Commercial Cookery has provided him with the skills and knowledge to be competent as a qualified chef or cook in a supervisory or team leading role in a kitchen. He says the Diploma of Hospitality will provide him with the skills to be competent as a manager in a hospitality functional area;

(c)through the Advanced Diploma of Business he will gain significant expertise, skills and knowledge of the business world to allow him to further develop expertise across a range of business functions;

(d)enjoys living in Australia, and has always obeyed Australia’s laws. He pays his tuition fees on time and his family supports him.

1. The Tribunal discussed the applicant’s lengthy PRISMS record with him:

2. In 2009 the applicant enrolled in a General English Language course, which he did not complete. He also enrolled in a Certificate III in Automotive Mechanical Technology (Light Vehicle) which he completed in August 2010. In 2010, he enrolled in a Diploma of Automated Technology, which he did not complete. In 2011, he completed another Certificate III in Automotive Mechanical Technology, and, in 2012, the Certificate IV. In 2012, he completed a Diploma in Automotive Technology. In 2013, he completed a Diploma of Management, and then an Advanced Diploma in Management. In 2013, he also enrolled in a Diploma of Business, which he did not complete. It appears he changed to the Certificate IV in Commercial Cookery, but he did not complete that course. In 2014, he enrolled in the Diploma of Marketing; he did not complete that course. In 2014, he enrolled in an Advanced Diploma of Business; he did not complete that course.

3. At the time of the hearing, the applicant was enrolled in the Certificate IV in Commercial Cookery. He was approved for enrolment in the Diploma of Hospitality for the period October 2015 to April 2016, and had been approved for the Advanced Diploma of Business from May 2016 to November 2017.

4. The Tribunal explained to the applicant the overriding requirement that the applicant satisfy the genuine temporary entrant criterion. The Tribunal explained that it was concerned that that his interest in cooking appeared to be a career change, and that given the length of time he proposed to study in Australia that he was not a temporary entrant. The applicant explained that the Advanced Diploma of Business was the “last thing” that he wanted to do.

5. On the basis of the above, and having considered the applicant’s circumstances and immigration history, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. The Tribunal has reached this conclusion by reason of the applicant’s lengthy and undistinguished study history in Australia, and the fact that the length of time the applicant proposes those studies will last, that is from July 2007 to October 2018, April 2009 to November 2017, is a period of some 7 and a half years. The Tribunal does not consider the applicant gave any persuasive explanation of why the wide variety of courses were necessary for the applicant to undertake to achieve his stated goals.

6. While the Tribunal accepts that the skills the applicant would acquire in a Diploma of Business were different to those he would acquire through his diplomas of Management, the Tribunal does not accept that did an Advanced Diploma of Business, puts him in a better position to establish his own business as claimed.

7. For these reasons the Tribunal is not satisfied that 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.

   R. C. Titterton
   Member