Dhaliwal (Migration)

[2017] AATA 2767

Dhaliwal (Migration) [2017] AATA 2767 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurwinder Singh Dhaliwal

CASE NUMBER:  1604137

DIBP REFERENCE(S):  BCC2016/314828

MEMBER:Gabrielle Cullen

DATE:14 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 14 December 2017 at 12:01pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Current enrolment and future plans – Course progression – Close family ties – Genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 573.223

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 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 21 January 2016. The delegate decided to refuse to grant the visa on 17 March 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. Movement records indicate that the applicant arrived in Australia on a subclass 573 visa on 13 September 2014 valid to 15 March 2016. The applicant applied to the Department for the visa on 21 January 2016. He departed Australia from 30 January 2017 to 23 February 2017.

4. Certificate of Enrolments attached to the applicant’s application refer to the applicant studying Certificates III and IV in Commercial Cookery, a Diploma of Hospitality Management and a Bachelor of Business (Management) from 19 October 2015 to 22 December 2019. The applicant has submitted certificates indicating he has now completed the Certificate III and Certificate IV in Commercial Cookery. PRISMS records indicate current enrolment in the Diploma of Hospitality Management to 11 February 2018 and enrolment in the Bachelor of Business from March 2018 to December 2019. A letter was also provided from his current education provider to confirm this.

5. The evidence from the applicant and Department decision indicates the following study history prior to the application for the current visa.

   ·The applicant completed a Bachelor of Arts in India.

   ·He was granted a subclass 573 visa to study a package of courses leading to a Graduate Certificate in Business.

   ·He successfully completed an English for Academic Purposes course from 9/14 to 12/14

   ·He was released from studying the Graduate Certificate by Griffith University in January 2015. He only achieved 5.0 in his IELTS test taken on 28 December 2012 and claims he did not continue to study in the subclass 573 area as his English was not good enough.

   ·He successfully completed a Diploma of Management in 2015/2016

6. The delegate decided to refuse to grant the visa on 17 March 2016. The delegate decided to refuse to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate, among other matters, was concerned that the applicant had not provided sufficient evidence as to the relevance of the study to his future employment prospects, considering his study in India and work at Coles in Australia. The delegate was concerned that he came to Australia on a subclass 573 visa and had did not commence these studies and he was concerned at the length of time he had spent in Australia.

7. On 24 March 2016 the applicant lodged an appeal to the Tribunal and attached the decision of the Department. On 26 October 2017 the Tribunal wrote to the applicant and invited him to attend a hearing on 21 November 2017. The letter, among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

8. The applicant submitted the following evidence.

   ·Certificate of Enrolments n all courses studied and Certificates showing successful completion of the Certificates III and IV in Commercial Cookery and Diploma of Management. The Certificates indicate attendance rates in the Commercial Cookery courses to be 85% and 86% respectively

   ·A statutory declaration as to his study history. He advised he could not obtain the English score to attend University in 2015 so Griffith University told him to study at a lower level. He was then provided with a release letter from Griffith University in January 2015 which he attached. He then moved to Perth and was aware he had to obtain a valid COE due to his student visa requirements. He said he went to Kingdom Institute who advised him to enrol in a Diploma of Business and Management and soon they would provide him with a path to a Bachelor’s degree. He claims he finished his Diploma of Management and then went to Cambridge International College, who were ready to offer him a package course leading to a degree but they insisted he had to do VET courses first.

   ·A release letter from Griffith University dated 20 January 2015.

   ·Letter indicating the applicant accepted the offer to study the Bachelor of Business on 25 October 2017 and that $1,000 has been paid towards the course.

   ·Evidence of applicant’s marriage on 9 October 2013.

   ·Evidence of employment positions for Chefs requiring degrees.

   ·IELTS test dated 28 December 2014 indicating an overall score of 5.0.

   ·Evidence of employment at RNB Perth ( Perth Stadium) in 2015/6

   ·Evidence of employment at Breadtime in 2015.

   ·Resume indicating employment at Indian Chapter Café and Restaurant from 1 July 2016 to 30 June 2017 as well as payslips after that time.

   ·Payment slips from SS Gillz as a trainee cook which the Government’s ABN site indicates is known as Indian Chapter Café and Restaurant[1]

   ·Evidence the applicant completed practical training at the Pan Pacific Hotel, Rendezvous Hotel, Perth Convention and Exhibition Centre and University Club of WA as part of the Certificate III in Commercial Cookery.

   [1] >

   The applicant also provided a statement addressing the genuine temporary entrant criteria. In particular he indicates that he wants to be a Chef on return to India and explains in detail why he wishes to become a Chef, why he needs practical courses and skilled education. He notes he undertook an Arts degree in India but is no longer interested in studying in this area. He indicates that all his family are in India including his wife and there are no civil or political reasons why he does not want to return home. He outlines why there is no pathway for him to obtain a permanent visa.

9. The applicant appeared before the Tribunal by video on 21 November 2017 to give evidence and present arguments. He was assisted with an interpreter in the Punjabi and English languages. His representative attended the hearing. The Tribunal raised with him that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student. Where relevant the evidence from this hearing appears below.

10. Additional to the evidence outlined above, he said after finishing his Bachelor of Arts in India he wanted to come and study a higher degree in Australia but could not obtain the IELTS score to study at this level at Griffith University.

11. He outlined the courses completed and was able to provide evidence consistent with independent evidence as to the course content of the Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality.

12. The Tribunal asked him in detail the relevance of the Bachelor of Business (Management) course to his future career aim to be a Chef. He said with a degree he can work anywhere in the world and become a Manager. He said people will invest in a person with a Bachelor degree. He said he will have a bigger chance to work for an international company with a Bachelor of Business. He said the Bachelor he undertook in India has no relevance to his chosen area. He said as his aim is to be a Chef Manager in a kitchen the Bachelor degree would help. The Tribaunl raised its concerns as to the relevance of a Bachelor degree to his future career aim.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

14. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

15. 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.

16. 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.

17. As to the applicant’s circumstances in his home country, no evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to India. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would present as a significant motive not to return. It accepts the evidence that the courses he has undertaken in Australia are regarded as better. The Tribunal accepts that he has closer family ties to India, with his parents and wife living there. The Tribunal considers that these factors are indicative of a person who is only a temporary entrant and wishes to return to their country.

18. The evidence indicates that the applicant has been continuously enrolled in Australia, successfully completing courses. Since his application for this visa he has successfully completed a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery. He is close to finishing the Diploma of Hospitality Management, which finishes in February 2018. The evidence indicates he has a good knowledge of these courses. He has enrolled in the Bachelor of Business and paid $1,000 towards his enrolment. The Tribunal accepts he is attending his courses and achieving course progression.

19. The Tribunal shares the Department’s concern as to his change in study plan from initially coming to Australia on a streamlined visa to study a Graduate Certificate in Business. The Tribunal accepts his evidence that his English was not good enough, only achieving an IELTS overall score of 5.0 in December 2014. It notes he was released from studying the course with Griffith University in January 2015.

20. The Tribunal finds the reasons as to why he changed his area of study and why he wishes to continue to study in the hospitality area as credible. It finds his employment as a trainee cook as supportive of his future career aim.

21. It has concerns as to why he needs to undertake a Bachelor of Business (Management) to assist him with his future career aim. He, however, provided evidence as to wanting to work with international companies as a Chef and this being of use. He indicated that he will not be able to apply for permanent residence with his qualifications. The Tribunal finds the applicant’s current enrolment and future plans supportive of his claim that he sees Australia as a temporary location in which to study.

22. For the reasons outlined above it views him as a genuine temporary entrant committed to his study.

23. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.573.223(1)(a).

24. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

25. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member