Dhingra (Migration)

[2018] AATA 863

Dhingra (Migration) [2018] AATA 863 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chetan Dhingra

CASE NUMBER:  1620368

DIBP REFERENCE(S):  BCC2016/2817285

MEMBER:Wendy Banfield

DATE:15 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2018 at 11:14pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Lack of enrolment – Distractions while in Australia – Father’s illness – Mental health – Withdrawal from studies

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2 cls 500.111, 500.211

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 23 November 2016 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 25 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there had been a breach of visa conditions and the applicant did not meet the genuine temporary entrant criteria.

   Background

4. The applicant is a citizen of India and is currently 24 years old. He came to Australia in 2013 to study a Bachelor of Business. Since his arrival in Australia the applicant has completed a university Foundation Studies Program and an Advanced Diploma of Management.

   Evidence of the visa applicant

5. The applicant confirmed he arrived in Australia in February 2013 to study a Bachelor of Accounting. He said he was initially enrolled in Foundations of Business Management and studied for the first semester. However, he said in the second semester he was unable to pass one subject. The applicant was nevertheless permitted to enrolled in a Diploma of Business Management course. He said he passed 8 subjects from the Foundation course and 4 subjects in the Diploma.

6. The applicant declared that his father became ill and he was unable to concentrate. As a result he failed four subjects so he took a deferment of his studies. He travelled back to India to see his father in February 2014. On his return in March 2014, the applicant said he became concerned about the fees for his studies and he also felt homesick so he moved in with cousins and applied for a release from La Trobe University. The applicant then enrolled in an Advanced Diploma of Management at Pacific College. According to the applicant, his father became ill again due to a brain haemorrhage. He deferred his studies again and returned to India in February 2015. He returned and completed the Advanced Diploma in September 2015.

7. The applicant denied that he was without a COE as stated by the delegate in the decision record. The applicant said he has always been enrolled and after the Advanced Diploma, he said he commenced his Bachelor course in November 2015. The applicant said he became depressed thinking about his father and he took three months off again. He visited a psychologist and has provided evidence of this. The applicant claimed he continued to attend college until October 2016 when he travelled to India again. Then on his return his student visa was refused in November 2016. The applicant said he had to take a deferment and then had to seek a new COE after he took March, April, May and June of 2016 off.

8. The applicant said he is not studying now and he only took one semester of his Bachelor course but could not pass. The applicant claimed he did not retake the subjects he failed because his student visa was refused. He said he was concerned that if he did one or two semester of study and was not successful in seeking a review before the Tribunal, he would have wasted a year. According to the applicant he no longer attends college and has withdrawn from his studies. He said he did not know he had to continue studying if his visa was refused. The applicant said he works part-time as an Uber driver and lives with cousins. He said his father is ready support his further studies.

9. The applicant confirmed he has applied for a skilled migration visa, which is being assessed, as a ‘Plan B’. He said it was done to gain experience in management but his main focus is in obtaining a student visa and studying in Australia. The applicant was asked to comment on the fact he was holding a Subclass 573 but did not maintain enrolment at the appropriate level. The applicant claimed this was because he had to do a Diploma before enrolling in a degree course. He disputed the delegate’s finding that he had not been enrolled for a period of nearly 12 months.

10. According to the applicant, he plans to re-enrol in a Bachelor of Business and ultimately take over his father’s business. Evidence was provided from the applicant’s father that he will employ his son in their wholesale/retail business. The applicant reiterated that his difficulties in the past have been due to his father’s illness but said he is now well. In Australia the applicant has cousins and a sister. His parents are in India and he said his father’s business is his incentive to return.

11. The applicant appeared before the Tribunal on 8 February 2018 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is enrolled in an approved course of study as required for the grant of a student visa.

14. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

15. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

16. Prior to the hearing the applicant submitted evidence of his studies in Australia, a written statement in support of his application, evidence of his father’s ill health and hospital admissions in 2014, 2015 and 2016, an Affidavit from the applicant’s father stating the applicant will take over his general store as manager on his return from Australia and a psychologists report dated 21 April 2016 regarding the applicant suffering from depressed mood and anxiety. The psychologists report is addressed to Holmes Institute and relates to a deferment of studies and withdrawal without penalty.

17. The applicant gave evidence at the Tribunal hearing about his studies and other events since arriving in Australia, including personal circumstances relating to his father’s health and his own mental health. He explained that he had difficulties with his course and his studies were adversely affected by his father being unwell. The applicant travelled to India several time, including in 2014, 2015 and 2016 to see his father who was undergoing treatment for medical issues.

18. The Tribunal has considered the evidence provided individually and cumulatively and accepts the applicant has experienced some distractions while in Australia that have affected his studies. However, the evidence relates to matters that occurred prior to 2017 and do not account for the applicant’s lack of enrolment since his student visa was refused. At the time of application, it appears the applicant was enrolled in a Bachelor of Business but on his evidence, he withdrew from his studies after receiving the Department’s decision. While the applicant claimed his main focus is to study in Australia, his actions in withdrawing from his course and not maintaining enrolment do not support this. The applicant argued the delegate was wrong to state he had not been continually enrolled, which suggests he is well aware of the need to be enrolled in a course to be eligible for the student visa. He declared he wants to re-enrol in a Bachelor of Business but has not done so, preferring to await the outcome of this review, or the outcome of his application for a skilled migration visa.

19. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

20. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Wendy Banfield
    Member