Chugh (Migration)

[2018] AATA 5400

Chugh (Migration) [2018] AATA 5400 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Karan Chugh

CASE NUMBER:  1620112

DIBP REFERENCE(S):  BCC2016/3164067

MEMBER:P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 August 2018 at 2:49pm

DATE OF WRITTEN RECORD:                2 November 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – immigration history – compliance with visa conditions – failure to maintain enrolment in the past – medical issues – anonymous allegations – work in the taxi industry – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 500.212, 500.611; Schedule 4, PIC 8202, 8516

APPLICATION FOR REVIEW

1. At the hearing on 8 August 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

2. The time is now 2.33 pm, and this is an oral decision in case number 1620112.

3. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 November 2016, to refuse to grant the visa applicant a Student (Temporary) (Class TU) subclass 500 visa under section 55 of the Migration Act 1958 (the Act).

4. Mr Chugh, you applied for the relevant visa on 23 September 2016 to undertake study here in Australia. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained two subclasses. The ordinary subclass 500 and the subclass 590 student guardian class. You have not claimed to meet the criteria for the subclass 590 student guardian visa.

5. The delegate in your case refused to grant you the visa on the basis that you did not satisfy the requirements of clause 500.212 of Schedule 2 to the Migration Regulations 1994, because the delegate was not satisfied that you were a genuine student who intends to stay in Australia temporarily – cl 500.212(a).

6. You appeared before the Tribunal via telephone to give evidence and present arguments. You were represented throughout the review with the Tribunal by a registered migration agent, however your registered migration agent did not attend and participate in the hearing today. Your registered migrant agent has, however, made written submissions to the Tribunal, which the Tribunal has read and had regard to.

7. The Tribunal explained to you that it in accordance with clause 500.212(b) the Tribunal must be satisfied that you are a genuine applicant for entry and stay as a student and that you intend to comply with any conditions subject to which the visa is granted, having regard to (a) your record of compliance with any condition of a visa you have previously held and (b) your stated intention to comply with conditions to which the visa may be subject and (c) any other relevant matter.

8. During the course of the hearing the Tribunal informed you that whilst the delegate refused you on the basis of you not meeting the genuine temporary entrant criterion in clause 500.212(a), the determinative issue before the Tribunal is whether you meet clause 500.212(b). That is, the Tribunal explained to you that the determinative issue which it was considering had changed from whether you satisfied the genuine temporary entrant criterion, which was what your visa was first refused on, to clause 500.212(b). You confirmed to the Tribunal that you understood that the determinative issue before the Tribunal had changed. You were given an appropriate opportunity to address the Tribunal concerning the determinative issue.

9. The Tribunal has had regard to your immigration history, and the Tribunal discussed your immigration history with you. Specifically, the Tribunal has concerns whether you are a genuine applicant for entry and stay as a student, having regard to your intention to comply with any conditions which attach to the visa which you have applied for. Most relevantly, condition 8202 and condition 8516. Clause 500.611 of Schedule 2 to the Regulations requires that these conditions be imposed upon your visa if it was granted.

10. Condition 8202 would require you to maintain enrolment in a full-time registered course. Further, condition 8202 would require you not to be certified by your education provider as achieving unsatisfactory course progress, or unsatisfactory course attendance in your registered course. Condition 8516 would require you to continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of a student visa.

11. The Tribunal has considered your previous compliance and discussed your visa history with you. Specifically, the Tribunal raised with you the periods where you were not studying, which are referred to in the delegate’s decision record. This is in two parts, from 7 February 2014 to 14 July 2014 and from 10 November 2014 to 18 April 2016. Whilst the first period is short, the second period is substantial.

12. You were invited to respond to the Tribunal’s concerns in relation to this. You acknowledged that you did not maintain your enrolment, as you were required to do so, during this time. You said that you were not well at the time, and that you were depressed. You spoke of your father’s health issues, and you also said that your grandfather had some health issues. The Tribunal has had regard also to your explanations for not studying, also contained in your representative’s submissions, which are at folios 40 and 41 of the Tribunal file. These written submissions also refer to your medical history, and make reference to the medical history of your father and also your grandfather. In other words, in your oral evidence today you acknowledged that during the periods referred to already you would have been in breach of your visa conditions, however what you have done is sought to offer an explanation for that conduct.

13. You have stated that in the future you intend to comply with your visa conditions. Given your record of non-compliance with visa conditions, the Tribunal is concerned as to the credibility of your stated intention. You have said that you are now in a mental state to complete the study which you have proposed. You have told the Tribunal that upon completion of the Advanced Diploma of Business that you are presently enrolled in, you would like to return to your home country and join your family business. You asked the Tribunal to simply accept your assertion.

14. The Tribunal has had regard, as I have already said, to your migration agent’s written submissions, which are undated, but at folios 40 and 41 of the Tribunal file. The Tribunal has also had regard to a letter from the Durbin International College dated 31 July 2018, which confirms your enrolment in the Advanced Diploma of Business, and that at that time you had completed 85 per cent of the academic coursework in the Diploma of Business. You have since told the Tribunal that in the intervening period you have completed that qualification.

15. The Tribunal has also had regard to the medical certificates that you have provided to the Tribunal, and various other medical documentation, which is retained on the Tribunal file. The Tribunal has read and had regard to this information.

16. Ultimately, the Tribunal is concerned, however, that your conduct in the past would have constituted a significant and substantial breach of conditions 8202 and 8516. And the extent of the breach in your case leads the Tribunal to have serious doubts concerning your stated intention to comply with these conditions in the future. In the end, having regard to the length of time that you have been in Australia and the period of time that you have not been enrolled in courses when you were required to be enrolled, the Tribunal does not accept as genuine your stated intention to comply with your visa conditions in the future, including the requirement to remain enrolled, which is imposed on all student visas.

17. For completeness, it is necessary that I outline in my reasons that the Tribunal also put to you information pursuant to section 359AA of the Act. Adopting the procedure in section 359AA of the Act, the Tribunal put to you information that it has on the Tribunal file to the effect that you are someone who is working full time in the taxi industry in Adelaide, possibly in breach of work conditions at times. The Tribunal explained to you what this information was by providing clear particulars; it confirmed with you that you understood what the information was, and also the relevance of the information, and the consequences of the Tribunal relying upon this information.

18. The Tribunal advised you that you could seek additional time before commenting on or responding to the information put to you, and you sought a period of 10-15 minutes. The Tribunal determined that it was appropriate to allow you this time. After a short break, the Tribunal invited you to comment on or respond, and you simply denied the allegations. You did not seek to comment further upon the allegations, but you said that sometimes when you work as a taxi driver you may be logged in to the system, but that you may be parking or sleeping, and that you would not actually, in your view, be breaching a visa condition by parking or sleeping. In any event, the Tribunal has determined that anonymous allegations of the kind before the Tribunal are so easily made and the Tribunal does not attach weight to unverifiable and untested allegations of this kind, and has therefore determined not to hold this information against you.

19. For the reasons set out above, already the Tribunal finds that you do not meet clause 500.212(b). As I have already said, you did not claim to make an application for or meet the requirements for a subclass 590 student guardian visa.

20. For these reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal makes this decision at 2.49 pm, and the decision of the Tribunal is to affirm the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

21. This decision is made at 2.49pm on 8 August 2018.

    DECISION

22. The Tribunal affirms the decision under review.

    P. Wood
    Senior Member