Bajwa (Migration)

[2018] AATA 1140

Bajwa (Migration) [2018] AATA 1140 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harpreet Singh Bajwa

CASE NUMBER:  1618925

DIBP REFERENCE(S):  bcc2016/1735464

MEMBER:M. Edgoose

DATE:14 March 2018

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 14 March 2018 at 10:28am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a “Genuine Temporary Entrant” – Lack of academic progress – Limited value of further studies

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 1, Item 1222, Schedule 2, 572.223(1)(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 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 14 May 2016. The delegate decided to refuse to grant the visa on 28 October 2016. 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 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. On 28 October 2016 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 the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 21 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an accredited interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Genuine Temporary Entrant

7. 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)     …

8. 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.

9. 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.

10. At the hearing, the Tribunal had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Background

11. The applicant is from India and applied for the visa on 14 May 2016 and the delegate refused to grant the visa on 28 October 2016 on the basis that the ‘Genuine Temporary Entrant’ criterion, or GTE criterion, which applies to every student visa, was not met.

12. The applicant first arrived in Australia on 28 June 2013 on a student visa (subclass 573).

13. The applicant told the Tribunal when he arrived in Australia on 28 June 2013 he lived and studied for a period of approximately six months in Sydney before relocating to Melbourne in early 2014.

14. The GTE criterion requires that the applicant is a genuine student because the applicant intends genuinely to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 53.

    Circumstances in home country

15. The applicant stated to the Tribunal that before coming to Australia, he had completed his secondary schooling and a Diploma of Information Technology at the Punjab University.

16. The applicant told the Tribunal that he had worked as an assistant in the information technology industry for a period of 6 months and earned the equivalent of $100 Australian per month.

17. The applicant gave evidence that his parents and younger brother live in India and that the applicant has not returned since coming to Australia on 28 June 2013.

18. The applicant told the Tribunal that he been able to manage personal relations overseas while living in Australia. In these circumstances the Tribunal does not consider the applicant’s personal connections overseas are a distinct incentive for the applicant to cease residence in Australia.

    Circumstances in Australia, and immigration and study in Australia

19. Adopting the procedure in section of the Act 359AA, the Tribunal read out the following statement to the applicant.

    Harpreet Singh Bajwa, I am going to share with you some information from a Departmental database.

    It is called PRISMS (the Provider Registration and International Students Management System) and it tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia.  I have a PRISMS report dated 6 February 2018.

    The information from PRISMS is:

    1.        PRISMS show you have enrolled in 15 courses during the almost 5 years you have been in Australia.

    2.         PRISMS report also shows that many of the courses you have enrolled in have the same course title or name and hence are repetitive or overlap. 

    3.        PRISMS show 13 of the courses you enrolled in are recorded as being cancelled for reasons of non-commencement of studies 5, deferment/suspension due to compassionate/compelling circumstances 1, student left provider to and transferred to another course 4, changed to a course in the same sector 1, change to COE 1,  non-payment of fees 1.

    4.        PRISMS show you enrolled in 2 English for Academics Purposes (EAP) Courses (Upper Intermediate to Advanced) for the period 17 June 2013 until 26 July 2013 but your enrolment was cancelled for non-commencement of studies.

    5.        PRISMS and Certificates of Graduation show you have not completed or graduated in a course of study since 3 April 2016.   

    6.        PRISMS show you do not currently hold a valid COE for enrolment in an approved course.

    This information is relevant because it shows that you have not started, have cancelled or not completed all courses you have enrolled in since April 2016. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you being a genuine student staying in Australia temporarily.

    If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine student, and that you do not meet cl.572.223(1)(a). If the Tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the Department in your case and refuse your application for a student visa.

    I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.

20. The Tribunal enquired if the applicant understood the information put to him in accordance with s.359AA. The applicant confirmed he understood. The applicant did not seek an adjournment and elected to respond in the hearing.

21. The applicant responded to the Tribunal that his migration agent had enrolled him in a number of packaged courses that he never intended to start, complete or had knowledge of being enrolled in. The Tribunal accepted the applicant’s explanation.

22. The applicant submitted to the Tribunal a certificate for a Diploma of Management and that course was completed 3 April 2016 (AAT Folio 48-50).

23. The applicant was requested to provide the Department with a GTE statement on 23 June 2016 and this was not submitted (DIBP Folio 44).

24. The applicant’s GTE statement to the Tribunal also states that he was enrolled by his agent into a range of courses that he never intended to start, complete or had knowledge of being enrolled into (AAT Folio 21). The Tribunal does not find this is adverse to the applicant.

25. The applicant’s GTE statement to the Tribunal (AAT Folio 20-23) made no reference to his future plans back in India. The statement made reference to the applicant being, quote “highly misguided by my migration agent”. The Tribunal asked the applicant why he didn’t change his migration agent and the applicant responded by stating his friend had recommended him.

26. The applicant said to the Tribunal that the majority of courses he was enrolled in were packaged courses and that he has no certificates or academic transcripts for those courses.

27. The applicant submitted to the Tribunal, at the hearing, a Confirmation of Enrolment for an Advanced Diploma of Leadership and Management at the Australian Institute of Technical Training to start on 19 March 2018 and finish on 17 March 2019 (AAT Folio 47).

28. The Tribunal asked the applicant why he had not completed his studies back in India and the applicant responded by saying that Australia provided more practical knowledge and that in India it was more theoretical.

29. The applicant stated to the Tribunal that he has no issues of concern back in India and will return to India at the completion of this course. There is no significant relevant evidence regarding the following factors indicated by Direction 53 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.

30. The applicant told the Tribunal that he currently lives in Wollert with friends, does not have a partner and works part-time as a taxi driver. The applicant stated to the Tribunal he only works Saturday nights and earns approximately AUD$500 per week.

31. The Tribunal considers that the economic disparity between India and Australia is common knowledge and is a real incentive for the applicant to remain in Australia. On his evidence the Tribunal notes that the applicant is likely to earn as little as AUD$600 per month back in India, compared to earning approximately AUD$500 per week as a taxi driver in Australia. Even taking into account the greater living expenses in Australia the Tribunal gives weight to this disparity.

    Applicant’s future plans

32. The applicant told the Tribunal that his future plans are to return to India and open up his own catering business, to look after his father’s property and that his family will support him. The Tribunal notes that the applicant did not provide evidence where the business would be located, the cost of the purchase of the land or existing business, the number of staff required and how the required capital would be raised or accessed in the future.

33. The applicant was unable to elaborate further to the Tribunal about his future plans back in India.

    Value of proposed study to applicant’s future plan

34. The applicant’s latest proposal is to study an Advanced Diploma of Leadership and Management through the Australian Institute of Technical Training. The applicant stated to the Tribunal that the course would provide him with the relevant qualifications to run the catering business. The Tribunal considers that the latest study proposal adds little incremental value to qualifications already achieved, in particular the management skills. The Tribunal accepts that the Advanced Diploma of Leadership and Management will add limited incremental value to the applicant’s future plans.

35. The applicant’s lack of academic progress between June 2013 and April 2015 and April 2016 and February 2018 is of concern to the Tribunal. The Tribunal considers that a genuine applicant for entry and stay as a student is a person who genuinely intends to stay in Australia temporarily.  The primary occupation of a student is to study.  The Tribunal considers that the onus is on each student to select a course in a subject and at a level where enrolment can be maintained and satisfactory course progress is achievable. 

36. The Tribunal considers that the applicant’s non completion of courses and a lack of academic progress between June 2013 and April 2015 and April 2016 and February 2018 is not the behaviour a student is a person who genuinely intends to stay in Australia temporarily.

37. The fact that the applicant now proposes significant further study indicates to the Tribunal that the applicant’s intention is not to cease his temporary stay in Australia. It is the Tribunal’s view that the applicant’s main purpose of being granted a further student visa is to maintain ongoing residence in Australia and is not a person who genuinely intends to stay in Australia temporarily.

    Conclusions

38. The Tribunal has significant concern of the value of the study now proposed does not lie outside Australia, but in the grant of further student visas for the purposes of continued residence in Australia. The Tribunal has little confidence that the study now proposed will be completed and that the applicant will depart Australia.

39. The applicant’s lack of overall academic progress during the almost 5 years he has been in Australia is a significant concern to the Tribunal. The first sign of academic success was in 2016. This leaves the Tribunal to find that the applicant is not a person who genuinely intends to stay in Australia temporarily and instead intends to prolong an already substantial stay.

40. 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).

41. 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

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

    M. Edgoose
    Member