Avrinder Singh (Migration)

[2018] AATA 5939

Avrinder Singh (Migration) [2018] AATA 5939 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avrinder Singh Avrinder Singh

CASE NUMBER:  1703008

HOME AFFAIRS REFERENCE(S):           BCC2016/4188062

MEMBER:M. Jackson

DATE:5 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2018 at 10:08am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entry – failure to complete previous higher-level study – enrolment in lower-level study, contrary to conditions – lower-level study and cancellations of enrolment with intention of maintaining residence – no clear future employment objectives – value of proposed study to future employment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.212(a)

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 and Border Protection on 3 February 2017 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 for the visa on 12 December 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay temporarily in Australia.

4.    The applicant appeared before the Tribunal on 23 May 2015 to give evidence and present arguments.

5.    The applicant was assisted in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

8.    Clause 500.212 requires as follows:

The applicant is a genuine applicant for entry and stay as a student because:

(a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)of any other relevant matter.

9.    Clause 500.211 requires as follows:

At the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering 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

1. On 3 July 2014 the applicant arrived in Australia as the holder of a TU subclass 573 Higher Education Student Visa intending to study a Bachelor of Business at the University of Tasmania, packaged with English language study (ELICOS).

2. The applicant provided the Tribunal with the following documents and evidence:

   a.The delegate’s decision record providing information about the refusal of the applicant’s Subclass 500 Student visa application and the cancellation of his Subclass 573 Higher Education Student Visa on 21 December 2016;

   b.A personal statement submitted by the applicant’s registered migration agent submitting that the cancellation followed an unintentional breach of visa condition 8516 and advising that because of the applicant’s current Bridging E (Class WE) visa status, which had no study rights, he could not provide a Confirmation of Enrolment (COE) from a new education provider but he had secured a letter of offer for further studies.

   c.A statutory declaration  from the applicant providing information regarding an Advanced Diploma of Hospitality Management at Enhance College of Technology Pty Ltd and making a commitment to uphold future visa conditions;

   d.A letter of offer from Enhance College of Technology for an Advanced Diploma of Hospitality Management commencing 2 July 2018; and

   e.Copies of academic transcripts and COEs for completed courses; identity documentation.

3. The applicant stated at the Hearing  that after arriving in Australia on his higher education visa, he chose not to study in his planned Bachelor of Business course because he found the University of Tasmania was very large and he was unprepared for it. He decided not to complete the ELICOS training that was packaged with his Bachelor course because his language study group was breaking up.

4. The applicant stated he moved to Brisbane on the advice of his cousin. He then enrolled in vocational courses with New England College of Technology. In so doing he breached a condition of his subclass 573 Higher Education visa and it was cancelled. He has been on a Bridging Visa E since.

5. The applicant is now seeking a subclass 500 Student visa because he wishes to study further in the vocational sector, in an Advanced Diploma of Hospitality Management for which he has an offer of enrolment from a different college.

6. The Tribunal put to the applicant under section 359AA of the Act that it had before it information from the Provider Registration and International Student Management System (PRISMS) concerning his study history. The Tribunal stated that it would put this information to the applicant and give him an opportunity to respond or comment. The information would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review to refuse to grant the visa. The Tribunal explained that it had not made up its mind about the information before it, and would explain the information and its relevance. It told the applicant he was entitled to seek additional time to comment or respond, and that if he wished to seek additional time, he should let the Tribunal know and the request would be considered. The Tribunal said the information was relevant to whether the applicant was a genuine temporary entrant and genuine student and it might cause the Tribunal to doubt his credibility as a Genuine Temporary Entrant and Genuine Student, or question his enrolment status. The applicant told the Tribunal he was happy to respond to the information without delay.

7. The information put to the applicant concerned entries in the PRISMS database, which show that he had finished only four six-month courses since arriving in Australia almost four years ago. They were: a Certificate IV in Small Business Management, a Diploma of Management, an Advanced Diploma of Management and a Diploma of Business. An Advanced Diploma of Business and two Certificate IV enrolments in Commercial Cookery had been cancelled in 2016 and 2017. PRISMS also showed that since coming to Australia he had not completed any ELICOS study, had not studied since November 2016 and the Tribunal considered it unlikely he could now enter the higher education system for which he originally came to Australia. The Tribunal put to the applicant that this might lead it to conclude that he had studied in relatively low level, lower cost courses purely to maintain residence here.

8. The applicant said he was not acting to maintain residency, rather, when he first arrived, he realised how difficult it was to study at university level in Australia so he thought he should start at a lower base. The applicant said that while he had commenced his ELICOS course at the University of Tasmania, people in his study group then moved to other cities, so he decided to withdraw and went to Brisbane on advice from his cousin. He said nobody told him that he needed to apply for another visa when he departed the higher education system for the vocational system. He said he was aware only that he needed to keep studying and was unaware he had breached the visa condition until his visa was cancelled. He subsequently realised he needed to apply for a subclass 500 visa to keep studying. He submitted he had completed four courses since leaving Tasmania, and, if his visa were granted, he planned to enrol in the Advanced Diploma of Hospitality Management mentioned above. He could not enrol before the Hearing because the E visa conditions meant he would not be accepted.

9. The applicant said he wanted to complete the Advanced Diploma of Hospitality Management to get a job as a restaurant manager. He would look for an opportunity in India but was willing to work anywhere. The Tribunal asked if this meant he wanted to work in Australia and he said he had not yet decided. Australia was in scope but India was his first preference, because his parents and sister are there. Apart from his cousin, he had no relatives in Australia, and the cousin had moved to Sydney.

10. The Tribunal put to the applicant that the delegate’s decision showed that in the visa application process that he might be eligible for a 485 visa. A Subclass 485 (Skilled - Graduate) is a visa intended to allow applicants who have recently completed studies in Australia, or those who need additional time to gain the skills required to apply for a permanent skilled visa, to stay in Australia for a period of 18 months and up to four years, depending on the date of the visa application. The applicant said his former migration agent had made the submission about the 485 visa without him seeing it. He said he had not made up his mind about this visa, he did not think about it, he just wanted to finish his studies.

11. When asked about his relative prospects in India compared with Australia he said he didn’t know much about relative potential earnings, but he had seen something on the news that said the hospitality sector was growing in India. The reason he did not want to return to India to study was the difference in study quality, which was much higher in Australia and led to good jobs.

12. In response to the Tribunal’s questions about his visa and travel history, the applicant said in 2012 he had tried to get a visa in the United Kingdom but was refused on the grounds that the academic certificate he submitted was not genuine. Once the UK had refused him and there was no further UK option, he applied to Australia.

13. After considering the applicant’s academic and immigration history, his academic circumstances and plans for the future, and all the specified factors in Direction 69 and other relevant matters, the Tribunal finds:

    a.The applicant does not have a clear plan for his future that would be enabled by his proposed studies. He has an idea of getting a restaurant manager job, but has not researched his prospects in any depth. He is instead relying on something he saw on the news about the restaurant industry growing in India.

    b.The applicant has not achieved the logical academic progression he sought with his initial visa because he was not committed to his studies. Having come to Australia to study ELICOS and a Bachelor of Business as a package, he did not apply himself; instead he abandoned university studies and breached his visa.  Having now completed four courses at vocational level, he wants a new visa to pursue a further vocational course at a similar level. He already holds an Advanced Diplomas in business and he has failed to demonstrate to the Tribunal the value in another Advanced Diploma.

    c.The applicant does not offer a coherent and reasonable account of why he abandoned his original study path at the University of Tasmania for which his initial visa was granted; nor does he convincingly explain how this was allowed to develop into a breach, because he has not approached his studies and visa status diligently, as a genuine student might. He broadly blames the education and migration system for letting him down, arguing it did not inform him about what he needed to do at the time he walked away from his courses to seek out the vocational sector in a new city. A genuine student, the Tribunal considers, would leverage the resources widely available at institutions and online to explore his visa obligations and risks, and his complaint about the system letting him down undermines his credibility.  

    d.The Tribunal finds the applicant does not have an intention to return home after studying his next course and he has not persuaded the Tribunal he intends to remain in Australia temporarily. He has not demonstrated strong incentives to return to India and he has previously considered applying for a work 485 visa, as expressed in his submission to the department. This visa is a pathway to permanent residency and undermines his claims that he is not using the student visa system to maintain residency in Australia. He blames his migration agent for submitting that without his knowledge, and seems not to accept that the responsibility to manage his immigration status lies with him. The applicant has not clearly ruled out the idea of working in Australia post study, arguing he doesn’t think about the future, he just wants to do his next course. The Tribunal notes the applicant has breached his Student visa in the past and it is unconvinced that he would not do so in the future.

Is the applicant enrolled in a specified course of study (cl. 500.211(a) of the Regulations)?

1. With limited exceptions, none of which is relevant in this case, the Regulations require for both subclasses of the Student visa, that at the time of the decision, an applicant must be enrolled in a course of study that is a principal course and is of a type specified for the subclass at the time of application. The Tribunal accepts the applicant has been unable to source enrolment while on his Bridging Visa E, and also that he has an offer of enrolment, but finds he is not currently enrolled in a specified course and the offer of enrolment he holds is not, at the time of this decision, sufficient  to meet a key criterion of the Regulations in cl.500.211(a)

Conclusion

1. The Tribunal, having had regard to the factors specified in Direction No. 69, finds it is not satisfied that the applicant is a genuine student or a genuine temporary entrant to Australia.

2. On the basis of its findings above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

3. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. The Tribunal, having had regard to the requirement of cl.500.211(a) of the Regulations, finds that the applicant is not enrolled in a specified course of study. Accordingly, the applicant does not meet cl.500.211.

5. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

DECISION

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

M. Jackson
Member