1509330 (Migration)

[2016] AATA 4678

1509330 (Migration) [2016] AATA 4678 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardeep Singh

CASE NUMBER:  1509330

DIBP REFERENCE(S):  BCC2015/1080520

MEMBER:Adrian Ho

DATE:24 November 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 24 November 2016 at 6:25pm

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 2 April 2015. The delegate decided to refuse to grant the visa on 23 June 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.

4. The applicant appeared before the Tribunal on 5 October 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

7. 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

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

   Genuine Temporary Entrant

9. 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)     …

10. 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.

11. 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.

12. 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.

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

    Findings

13. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant has explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers (DIBP file f.82);

    b.The applicant has close family members and friends outside Australia, which include his parents and a brother and sister in India (oral evidence and submission of agent at folio 48);

    c.The applicant does not have close family members in Australia;

    d.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia;

    e.That plan is an ambition to contribute to his family’s business in farming and pesticides (oral evidence and submission of agent at folio 48), and may include opening other businesses, or being ‘self-employed’ (DIBP File f.82).

14. The applicant gave the following evidence as relevant:

    a.He finished secondary school in India in 2004 or 2005 then worked in a marketing role;

    b.that he arrived in Australia on a student visa in 2009 proposing to study a diploma of prepress graphics and multimedia which he said was related to his marketing work and related to a plan to open an online business delivering education courses (2 year course not completed);

    c.As his grandfather was very ill, he returned to India in October 2009 and arrived back in Australia in January 2010. , As a result, he missed some classes and his provider did not allow him to repeat units he had missed;

    d.he resisted the proposition that the VET sector prepress graphics course was a common course and a motivated student could complete the course if not at a current provider, then at an alternate provider;

    e.his visa was expiring in April 2011 and he applied for a second student visa despite still grieving over the death of his grandfather;

    f.he did not propose graphics prepress because he was advised it would be a waste of money to repeat the course;

    g.he proposed a diploma of business, diploma of management, and advanced diploma of business (the migration agent  corrected this information and said what was proposed was a certificate IV in business, diploma of business, and advanced diploma of business);

    h.he started the diploma of business and ‘could not pursue it’ due to his grief over his grandfather’s death in December 2010;

    i.he could not complete the first unit of the diploma of business because he could not concentrate;

    j.his visa application was refused by the Department based on his financial capacity and he sought review at the Migration Review Tribunal;

    k.he had a bridging visa A and agreed it did not prevent him from studying;

    l.he claims he was depressed over his grandfather’s death and cannot remember when his visa was refused or when he applied to the tribunal for review;

    m.he claims he was fully recovered from his grief in 2013;

    n.he obtained a positive decision from the tribunal and was granted the student visa in January 2014;

    o.he did not study from when the visa application was refused in 2011 to when he was granted the visa in January 2014 because he said he was shocked and depressed;

    p.a migration agent told him that studying during the ‘MRT period’ would be worthless and not worth it;

    q.when challenged as to how study of value to his future in India could be worth less – he said that he believed the migration agent;

    r.he resisted the proposition that a student intending to stay temporarily to gain skills, knowledge and qualifications to be used overseas might have checked the Department’s online system VEVO to confirm they had the right to study and decided to continue studying while waiting for a tribunal decision;

    s.by the time he was granted a substantive student visa in January 2014 he had proposed fresh courses: however he could not name the names of the courses he proposed in order to be granted the visa in January 2014;

    t.he did mentioned there was a diploma of marketing proposed which he started but abandoned because he wanted to do a diploma of business;

    u.he completed the diploma of business, which he agreed was the only course he had completed in Australia since 2009;

    v.he visa was to expire in April 2015;

    w.he said that poor health, in the form of nerve pain, force him to withdraw from the next course, an advanced diploma of business during the very first unit;

    x.despite his claimed nerve pain he said he still drives a taxi sometimes;

    y.he has not been studying for more than a year now while waiting for the tribunal a second time and while again holding a bridging visa A allowing him to study;

    z.he resisted the proposition that he appeared more interested in the substantive student visa than in the acquisition of skills, knowledge and qualifications to put towards the family business of farming and pesticides through a newly proposed course – the VET sector advanced diploma of leadership and management;

    aa.the last time he returned to India was 2012.

    Consideration

15. In the years since 2009 the applicant has only completed one course in Australia: a diploma of business.

16. It is his claim that the successful completion of his studies was prevented, in large part, at various stages since 2009 because of:

    a.Prolonged grief due to the death of his grandfather in December 2010 (f.47) which extended until 2013;

    b.His belief in poor advice that he should not study during the tribunal review process despite having the right to study (from 2011 to 2013);

    c.Poor health in 2015 leading into 2016, where he did not complete the first unit of an advanced diploma of business.

17. As suggested, the tribunal does not find these explanations convincing.  As was put, the tribunal considers that the applicant has allowed other factors in his life to prevent him from embarking upon the central occupation of a student: to study.  As suggested, the tribunal considers that when a student seeks and is granted a student visa as a student, the student asserts, through the visa criteria, that the student has the necessary English language acumen, financial capacity, and, in the tribunal’s view, the necessary personal qualities and resolve to embark upon the study selected by the student, achieve satisfactory outcomes, and see through that study. 

18. Despite being struck by grief, benighted by poor advice, and plagued by ill-health, over many years, the applicant continues to urge the government to grant him a student visa to allow him to complete studies he says are of value to his future.  As suggested, the tribunal considers that a 7 year period since 2009 is more than a sufficient time for a student to demonstrate by their conduct that they intend to acquire skills, knowledge and qualifications in a temporary stay which they intend to use overseas.  That is the central proposition against the criterion the applicant would have the tribunal accept.

19. The applicant has had 7 years to acquire skills, knowledge and qualifications.  As pointed out, he was not obliged to seek a student visa, or even seek tribunal review, if he felt that grief or ill-health would prevent him from successfully studying.  However, he did.  And in the years that he has had in Australia he has acquired very little skills, knowledge and qualifications.

20. He has sufficient incentive to return to India in the presence of his family there and the family’s business and other business propositions he claims for himself in India.  Despite this he made no comment on why he had not returned to visit since 2012.

21. It remains the case that the applicant claims to the government that he has not yet had enough time to acquire the skills, knowledge and qualifications he claims have value to his future, and that he needs more time to do so.  Only then, if he accomplishes that task, will he depart.

22. He does not blame himself for his inability to complete his claimed mission in Australia.  Rather, he places responsibility for that at the hands of his grief, believing poor migration advice, and poor health, which has not prevented him from occasionally driving a taxi, but has prevented him in recent months from obtaining any enrolment in a course until the tribunal invited him to do so in the invitation to the tribunal hearing.

23. As suggested, when his entire immigration and study history are taken as a whole the tribunal has no satisfaction that the applicant intends to acquire skills, knowledge and qualifications that he will bring back to India, and bring back to his family there, as claimed.  He has extremely poor recall of his immigration and study history which is indicative of a lack of interest in the study he has and is proposing. 

24. For these reasons, the tribunal is not satisfied that the advanced diploma of leadership and management, nor any other course previously proposed or completed, have any distinct value to the applicant’s future in India or elsewhere outside Australia as claimed.  As suggested, the tribunal finds that the applicant now produces a COE for a course, which document was created on 29 September 2016 (f.41), only because the tribunal asked him to produce a COE in its invitation to the hearing.  As suggested, despite claiming he had recovered from poor health earlier in 2016, on the evidence, he did nothing to resume study to acquire the skills and knowledge that his claimed departure from Australia is premised on.  As suggested, this is because the applicant is not interested in that departure, and therefore not anxious to acquire the skills and knowledge for a return to India or elsewhere.  The applicant, as was put to him, is interested in prolonging his stay in Australia for as long as is lawfully possible.

25. Placing the greatest weight on the factors in Direction 53 discussed above, the tribunal finds the applicant intends to stay in Australia indefinitely, and not temporarily.

26. The tribunal has considered the written submission of the migration agent at folio 49 but does not find it of assistance in consideration of the central issues laid out above.

27. 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).

28. 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

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

    Adrian Ho
    Member