CHINDER PAL KAUR (Migration)

[2017] AATA 2275

CHINDER PAL KAUR (Migration) [2017] AATA 2275 (25 October 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs CHINDER PAL KAUR CHINDER PAL KAUR

CASE NUMBER:  1705744

DIBP REFERENCE(S):  BCC2016/1730121

MEMBER:Jennifer Cripps Watts

DATE OF DECISION:  25 October 2017

DATE CORRIGENDUM

SIGNED:27 October 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  

The following corrections are made to the decision:

Where the Tribunal has referred to 573, this has been incorrectly stated by the Tribunal and is amended by means of this Corrigendum to 572 in paragraphs 8, 9, 10, 12, 24 and 27.

Where the Tribunal has referred to cl.573.223 (1A)(b), in paragraph 24, this has been incorrectly stated by the Tribunal and is amended by means of this Corrigendum to cl.572.223(1A)(b).

Where the Tribunal has referred to “subclass 573 visa” in paragraph 27, this has been incorrectly stated by the Tribunal and is amended by means of this corrigendum to “subclass 572 visa”.

There is an attachment to the Tribunal’s decision entitled, “ATTACHMENT – Extracts from the Migration Regulations 1994” visa subclass 573.223. The attachment was attached in error and is replaced in it’s entirely by means of this Corrigendum with “ATTACHMENT – Extracts from the Migration Regulations 1994” for visa subclass 572.223.

Jennifer Cripps Watts

Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs CHINDER PAL KAUR CHINDER PAL KAUR

CASE NUMBER:  1705744

DIBP REFERENCE(S):  BCC2016/1730121

MEMBER:Jennifer Cripps Watts

DATE:24 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2017 at 6:44pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine temporary entrant – Extended gap in studies – Lack of ongoing interest in field – Lack of academic progress

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.223, Schedule 8, Condition 8202

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 on 8 March 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 13 May 2016. At the time of lodgement, Class TU contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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); 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 visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 24 October 2017 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent, Ketan Patel, Migration Agent Registration Number 0321153.  He did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a national of India, born in July 1988.  She arrived in Australia for the first time, travelling on a subclass 572 visa with her husband, Maninder Singh Saini, born June 1988, who is the secondary applicant.  At the Tribunal hearing, the applicant confirmed that she and her husband have separated and that he returned to India in December 2016.  Department records indicate he has remained offshore since then.

8. The applicant was granted her first subclass 572 student visa on 14 February 2013 that ceased on 15 March 2015.  She was granted a further subclass 572 student visa on 6 May 2015 that ceased on 13 May 2016.  On 13 May 2016, the applicant applied for a subclass 573 student visa and on 1 August 2016 the visa was refused because the delegate was not satisfied the applicant was a genuine temporary entrant (“GTE”).  The applied lodged an application for review with this Tribunal on 23 March 2017 and appeared before the Tribunal on 24 October 2017.

9. In the present case, as the applicant currently is enrolled in an Advanced Diploma of Leadership and Management [088756F] at The Wales Institute, as her principal course, the subclass that may be granted is Subclass 573. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 573, this requirement is contained in cl.573.223, which is extracted in the attachment to this decision.

10. The requirements of cl.573.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible higher degree student’ who has a confirmation of enrolment (“COE”) in each course of study for which they are such a student. ‘Eligible higher degree student’ is defined in cl.573.111 to mean an applicant for a Subclass 573 visa who is enrolled in a bachelor’s degree or a masters degree by coursework or for visa applications made on or after 23 November 2014 an advanced diploma in the higher education sector, and any preliminary course, with an eligible education provider or, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

11. On the evidence before the Tribunal, the applicant in this case is, and was at time of application, an eligible higher degree student who has a COE for each relevant course of study.  The applicant is currently enrolled in an eligible degree at The Wales Institute at 21-69 Regent Street, Redfern, New South Wales, which is an eligible education provider: IMMI 03438A.  Whilst onshore, she has, since her arrival in 2013 and up to the time of this decision, held either student or bridging visas.

12. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations. This was because the delegate, having regard to academic progress, study history, potential circumstances in Australia , immigration history and the value of the courses to the applicant’s future, was not satisfied that she was a genuine temporary entrant.

    Is the applicant a genuine student having regard to intention to comply and other relevant matters?

13. In addition to meeting the evidentiary requirements relating to English language and qualifications, the Tribunal must also be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and any other relevant matter.

14. There is evidence on the file that the applicant completed and finished the following courses of study:

    a.Certificate III in Children’s Services, from 11/02/2013 to 30/06/2013

    b.Diploma of Children’s Services (Early Childhood education & Care) from 05/07/2013 to 15/09/2014

    c.Diploma of Business from 16/02/2015 to 16/08/2015

    d.Diploma of Leadership and Management from 27/06/2016 to 11/06/2017

15. The Children’s Services courses were completed in Melbourne.  The applicant moved to Sydney in at the end of 2014/early 2015 to continue her studies.

16. The applicant does not appear to have studied for an extended period of time, from 16/08/2015 to 27/06/2016.  The applicant was given an opportunity by the Department to provide information about what study she had undertaken during the period and did not provide satisfactory or reliable information.  The PRISMS record on the Tribunal’s indicates that the applicant was enrolled in an Advanced Diploma of Business from 14/09/2015 to 13/03/2016, but that the enrolment was cancelled due to non-commencement of studies on 29/09/2015.  She did not provide any reliable or documentary information that explained why she did not study during that period, to the Department or the Tribunal.

17. On the basis that she did not study for nearly a year from August 2015 to June 2016, the applicant breached visa condition 8202 which requires, essentially, that she be enrolled in a full-time course of study or training.  The applicant did not claim that the non-compliance was due to exceptional circumstances that were beyond her control.

18. The applicant completed a Diploma of Leadership and Management on 11 June 2017 and enrolled in the Advanced Diploma from 26/06/2017 to 09/09/2018.  However, she cancelled her enrolment and travelled back to India from 24/07/2017 to 08/10/2017.  Upon returning to Australia, the applicant re-enrolled in the Advanced Diploma course at The Wales Institute from 23/10/2017 to 09/09/2018, which is confirmed in PRISMS.  The applicant provided a receipt that indicates she has paid an initial pre-paid tuition fee of $590 of the total tuition fee of $7,750.

19. The applicant was asked at the hearing when she would commence study and said “next week”.  It was pointed out to her that the course had already started the day before the hearing and the applicant changed her answer to say that she intended to start “today” (meaning the day of the hearing) but had phoned the college earlier in the day and told them she had the Tribunal hearing and would come in after the hearing.  The Tribunal considers the information provided about this to be internally inconsistent.  It is reasonable to think the applicant would know when her course starts.  The impression the Tribunal had was that she was evasive in her responses when asked at the hearing what subjects she would be taking and eventually said they were the same subjects as the first Diploma, but at the advanced level, which the Tribunal did not consider to be very informative. 

20. The applicant was non-compliant with her visa conditions from 2015 to 2016 – she did not study during this period as is required by condition 8202.  Her chosen field is childcare and, apart from the courses she did in Melbourne that finished in 2014, the Tribunal’s view is that she has not demonstrated an ongoing interest in that field.  She was asked if she works and said she does, part-time 20 hours a week (but not at the moment because she only has a bridging visa) and said the last time she had a part-time job in childcare was in 2014 in Melbourne.  The applicant told the Tribunal she intends to open a childcare centre in the Punjab in 2018 when she finishes the course she is currently enrolled in because there are good commercial opportunities there and it is reasonable to think that if she genuinely intends to do so that she might work in the field to obtain relevant experience.

21. In a letter the applicant provided to the Tribunal, the applicant says her future plans are to live and build a career in Australia after she finishes her study.   The applicant also provided similar information to this to the Department, on 13/09/2016, saying she plans to live in Australia on a permanent basis after she finishes her study, but contradicted this version at the hearing by saying she intends to go back and open a childcare centre in the Punjab in 2018.  The Tribunal considers her claims overall that she intends to open a childcare centre, not to be credible.

22. The applicant has not satisfied the Tribunal that she is a genuine temporary entrant.  In making this finding, the Tribunal has considered the follow matters:

    a.The applicant’s own written statements, to both the Department (in 2016) and the Tribunal (in 2017), that she plans to stay in Australia and build a career.

    b.The applicant finished her childcare course in Melbourne in December 2014, moved to Sydney and studied a Diploma of Business from 16/02/2015 to 16/08/2015.  She did not undertake any study, on the evidence, from 16 August 2015 to 27 June 2016 and was therefore non-compliant with a condition attached to her student visa:  8202.

    c.The applicant has not completed any courses above vocational level in the VET sector.  From 11/02/2013 to 31/12/2014, the applicant student courses in Children’s Services.  From 2015, she has studied a Diploma of Business and then a Diploma of Leadership and Management.  The Tribunal is not satisfied, on the evidence, that the course the applicant is now enrolled in, which is the Advanced Diploma of Leadership and Management at the same institution she studied her previous course will see her progress further academically as she claims it will.

    d.The applicant, since 2014, has not directly demonstrated any commitment to pursuing meaningful work experience in her chosen field of childcare or childcare management.  The last time she worked in childcare was 2014 and in Sydney she worked for a dry-cleaner up until July 2017 when she went to India.

    e.The applicant has not provided evidence of close ties to India.  The Tribunal acknowledges that her parents and one sibling live there, but she has two other siblings who live outside India, in Bahrain and another in the USA.  Although she travelled there from July to October 2017 for two and a half months, this was the first time the applicant has returned to India in three years and the Tribunal does not consider this single trip to demonstrate that the applicant considers her ties to India to be strong or that she genuinely intends to return there to live when she finishes the course she is currently enrolled in.

23. The Tribunal’s view, having considered all facts and matters, is that the applicant is not a genuine temporary entrant, but appears to be using the student programme to maintain residence in Australia.  She has expressly said that she plans to stay in Australia.  Although the applicant gave oral evidence at the hearing that she plans to open a childcare centre in the Punjab with her cousin, there was no evidence provided that she has made such plans and the Tribunal is not satisfied that she has.

24. On the basis of the above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.573.223(1A)(b).

25. There was no claim made or evidence provided by the applicant that she is eligible to be granted a student visa of another subclass.

26. As the applicant does not meet the criteria for the grant of the visa, the Tribunal must also affirm the Department’s decision to refuse the visa for the secondary applicant.

27. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 573 visa are not met. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

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

    Jennifer Cripps Watts

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(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

    (b)the applicant meets the requirements of subclause (2).

    (2)An applicant meets the requirements of this subclause if:

    (a)for an applicant who is not a person designated under regulation 2.07AO:

    (i)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (ii)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (B)any other relevant matter; and

    (iii)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity; or

    (b)for an applicant who is a person designated under regulation 2.07AO ...