BHULLAR (Migration)

[2018] AATA 3233

BHULLAR (Migration) [2018] AATA 3233 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAGDEEP SINGH BHULLAR

CASE NUMBER:  1617365

DIBP REFERENCE(S):  BCC2015/1533671

MEMBER:M. Edgoose

DATE:9 July 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 09 July 2018 at 12:03pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – genuine temporary entrant – earning capacity – ability to manage personal relations – lack of academic progress – applied for course before hearing – trave history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 572.223

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 and Border Protection 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 28 May 2014. The delegate decided to refuse to grant the visa on 28 September 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 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 the delegate was not satisfied the applicant was a genuine applicant for entry and stay as a student and intended to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 6 June 2018 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)     …

9. 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.

10. 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.

    Background and applicant’s immigration history

11. The applicant gave evidence at hearing that he is from India and first arrived in Australia on 22 June 2009 on a 572 student visa.

12. The applicant applied for the visa on 28 May 2015 and the delegate refused to grant the visa on 28 September 2016 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met.

13. The applicant informed the Tribunal that he has not departed Australia since arriving in 2009. The applicant started to the Tribunal that Australia is the only country he has travelled to outside of India and that he has complied with the migration laws of the country and the relevant visa conditions. The Tribunal considers that based on the amount of time the applicant has spent in Australia that and given that he has not completed a course of study since October 2015 when he graduated from a General English course (AAT Folio 59) and that the applicant has used the student visa to maintain ongoing residence .

    The applicant’s circumstances in their home country

14. Before coming to Australia, the applicant had completed High School and a Bachelor of Arts through the University of Punjab in 2008 and had worked on the family farm where he was paid AUD $400 per month. The Tribunal does not accept the applicant’s earning capacity back in India is an incentive for him to return to India.

15. The applicant informed the Tribunal that his parents live back in India and that his brother lives in Darwin with his wife. The applicant told the Tribunal that his mother came to visit him in 2017 and stayed for a period of three months and that he has not talked to his father since 2016.

16. The applicant informed the Tribunal that he has been able to manage personal relations with his mother back in India while living in Australia by making contact on a daily basis and that he has regular contact with his brother in Darwin. In these circumstances the Tribunal does not consider the applicant’s personal connections overseas serve as a distinct incentive for the applicant to cease residence in Australia.

    The applicant’s potential circumstances in Australia

17. Adopting the procedure in s.359AA of the Act, the Tribunal read out the following to the applicant.

    I am going to share with you 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 18 December 2017.

    The information from PRISMS is:

    1.PRISMS show you have enrolled in 22 courses during the almost 9 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 14 of the courses you enrolled in are recorded as being cancelled

    4.        PRISMS show 8 of the courses you enrolled in are recorded as being finished.

    5.PRISMS and Certificates of Graduation show you have not completed or graduated in a course of study since October 2015. 

    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 October 2015. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you intending to live 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. 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.

18. The Tribunal enquired if the applicant understood the information put to him in accordance with s.359AA. The applicant confirmed he understood and elected to respond in the hearing. The applicant informed the Tribunal that he has submitted certificates for all of the courses that he completed during his time in Australia and that his enrolment in the Diploma of Information Technology Networking has been cancelled for non-payment of fees.

19. The applicant submitted to the Tribunal certificates for the following courses that he has completed since arriving in Australia on 22 June 2009.  

    a.Certificate III in Automotive Mechanical Technology in November 2010

    b.Diploma of Management in September 2011

    c.Certificate IV in Automotive Technology in February 2014

    d.Diploma of Automotive Management February 2014

    e.Advanced Diploma of Management in July 2015

    f.General English course in October 2015.

20. The applicant told the Tribunal that he has not completed a course study since 2015.

21. The Tribunal notes that the applicant submitted at hearing a Confirmation of Enrolment for an Advanced Diploma of Business (AAT Folio 68) starting on 7 June 2018.  The applicant stated to the Tribunal that he would like to continue with his studies in the automotive field and that it was hard to get enrolled in this course of study back in India. The Tribunal notes the applicant only applied for this course of study on 5 June 2018 the day before the hearing. The Tribunal does not accept that the applicant will complete this course of study as he has not studied since 2015 and only enrolled prior to the hearing. The Tribunal is of the view that the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

22. The applicant informed the Tribunal that he is currently not working but has worked as a part-time mechanic in the past. The applicant told the Tribunal that he currently lives in Croydon and contributes AUD $110 per week towards the rent. The applicant said that he currently is supported financially by his mother back in India. The Tribunal is of the view that the applicant’s potential earning capacity in Australia outweighs the applicant’s earning capacity back in India and this would be an incentive for the applicant to remain in Australia.

23. The Tribunal gives regard to the applicant’s GTE statement (AAT Folio 53 – 55) dated 13 May 2018 which made reference to the applicant’s education history in Australia, his reasons for undertaking the Advanced Diploma of Business, his reasons for not progressing to the higher education sector, that he had two bad years after the separation of his parents, that the economic situation in India is very stable and that he is supported by his mother who runs an agricultural farm, that he has decided to go back to India for good, but Australia is a good place to study, and that he makes regular contact with his mother back in India via telephone. The Tribunal gives little weight to the applicant’s GTE statement.

    Value of the course to the applicant’s future      

24. The applicant told the Tribunal that he would like to open his own automotive business back in India in the future and that his new course of study will provide him with the relevant skills and knowledge.  The applicant when pressed by the Tribunal said that his mother will pay for the automotive business and that with his Australian qualifications he will be able to run and promote the business better. The Tribunal does not accept the applicant’s future plans lie outside of Australia as he has not departed Australia since arriving on 22 June 2009. The Tribunal is of the view that the applicant is using the student visa program to maintain ongoing residence in Australia and that the applicant does not genuinely intend a temporary stay in Australia.

25. The Tribunal has little confidence that the applicant will complete the Advanced Diploma of Business as the applicant has not completed a course of study since October 2015 and that the applicant is not a genuine student or genuine temporary entrant. The Tribunal finds that the student visa is being used to maintain ongoing residence.

26. The applicant informed the Tribunal that he has no issues of concern back in India. 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, economic or 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.

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.

    M. Edgoose
    Member