Gurbir Singh (Migration)

[2018] AATA 2593

Gurbir Singh (Migration) [2018] AATA 2593 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurbir Singh Gurbir Singh

CASE NUMBER:  1617514

DIBP REFERENCE(S):  BCC2016/2805858

MEMBER:Stephen Witts

DATE:5 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2018 at 4:04pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – Poor study history – Significant number of courses cancelled for non-commencement of studies – No credible explanation for lack of course progress or career direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212 Schedule 8, Condition 8516

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 5 October 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 24 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. 500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 intends genuinely to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

10. At the hearing the Tribunal had a discussion with the applicant regarding the issues which focused on the considerations outlined in Ministerial Direction 69.

    Background

11. The applicant arrived here from India on 15 October 2013 to undertake a Diploma of Information Technology which was subsequently cancelled. The applicant arrived in Australia as a holder of a Higher Education sector class TU subclass 573 student visa that was granted until 30 August 2016. The applicant did not reapply for a new student visa, but continue to hold a Higher Education sector class TU subclass 573 student visa, and then went on to study vocational education sector level courses. The delegate found that the applicant had failed to comply with condition 8516 of a student visa.

12. Since that time he has enrolled in a significant number of disparate and unconnected courses. These include various Diploma courses in Management, Hospitality, Business, and Certificates in Commercial Cookery and Business most of which were cancelled or not finished.

13. The applicant is currently studying an Advanced Diploma of Hospitality Management due to finish on 21 October 2018.

14. The GTE criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 69.

    Circumstances in home country

15. Before coming to Australia the applicant had completed High School. He stated that he wanted to study here because of the quality of higher education in Australia.

16. The applicant stated that he had close family ties at home including parents and sisters. He has only been back once in the last 5 years when he spent 34 days outside the Australia. The applicant indicated that he had not had any problems in maintaining his personal relationships back at home by keeping in regular contact. The Tribunal was concerned about this and the fact that the applicant had only rarely returned home. The applicant gave no specific reasons why this had occurred.

17. He stated that his father owns property in India and is largely paying for his studies. The Tribunal did not find it credible that these factors acted as a personal incentive to return home. The applicant claimed that property owned overseas by the family did constitute an incentive to cease residence in Australia. Property overseas however is readily sold, or indeed, may never be sold and may instead produce income in the form of rent. The holding of such property by the family is no effective incentive for the applicant to cease residence in Australia.

18. There is no significant relevant evidence regarding factors indicated by Ministerial Direction 69 based on: military service, economic or social factors or things such as civil unrest.

    Circumstances and study in Australia

19. Adopting the procedure in Section 359AA of the Act, the Tribunal informed the applicant of the potential of adverse information:

    I am going to share with you some potentially adverse 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.

    The information from PRISMS is:

    1.        PRISMS show you have enrolled in a significant number of courses during the almost 8 years you have been in Australia.

    2         PRISMS show that a number of the courses you enrolled in are recorded as being cancelled for reasons of non-commencement of studies.       

    This information is relevant because it shows that you have not started, have cancelled or not completed all courses you have enrolled in. It indicates a lack of academic progress that in the absence of other explanation may not be 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.500.212. 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.

    Do you understand this and do you require more time or do you wish to comment?

20. The Tribunal enquired if the applicant understood the information put to him in accordance with s.359AA. The applicant confirmed he understood. The applicant did not seek an adjournment and elected to respond in the hearing.

21. This information shows that the majority of courses which the applicant originally enrolled in were subsequently cancelled. These included Bachelors of IT and Business, Diplomas and some Advanced Diplomas of Hospitality, Hospitality Management, and Management, and Certificates in Commercial Cookery.

22. The applicant explained that he had to cancel a number of courses because he was very homesick for the first year he was in Australia and he had a number of payment problems with courses that led to their cancellation. The Tribunal was concerned that this excuse was not an adequate reason for his poor study history and lead the Tribunal to doubt whether the applicant was genuinely seeking to reside in Australia temporarily.

23. In regards to the lack of success in his studies he testified that he received bad advice from agents and began studying management and IT courses in error and had really always wanted to be a chef or work in the hospitality industry. The Tribunal could not accept that these reasons constituted a plausible explanation for the non-completion of these courses.

24. The applicant acknowledged that he had changed his academic pathway during his time in Australia but was now sure about his direction. The tribunal was concerned that the applicant could give no credible explanation for this lack of progress. His excuse that he received bad advice was not credible as it was not backed up by any factual material.

25. In his GTE statement the applicant also stated that he had significant problems with his study here in Australia and asserted that he consistently received bad advice from agents and educational authorities.

26. The applicant has now finished Certificate III and Certificate IV in Commercial Cookery and has the necessary qualifications that would, in any case, enable him to pursue his stated aim of being a chef in his home country.

27. While Direction 69 indicates that reasonable changes to career trajectory should be accommodated, the tribunal is not persuaded that the applicant genuinely decided to cease his plan to achieve qualifications in general business and information technology, subsequent to the hospitality and cooking courses, to train as a commercial cook in accordance with his current plan to run a restaurant/hospitality business back in India. The Tribunal was concerned that the applicant could give no credible explanation for these significant changes in study trajectory. The Tribunal was also concerned that the applicant could not explain how his latest course of study, an Advanced Diploma of Hospitality Management, what actually assist him in obtaining employment in the hospitality area back in his home country.

28. The consideration above cast significant doubt as to the applicant’s own perception of the value of study proposed for the applicant’s future, especially given the applicant’s personal incentives to return home. The applicant has had ample opportunity and time to achieve an educational outcome in courses and at providers of the applicants choosing. For the reasons above the tribunal is unpersuaded by the applicant’s explanation for why an educational outcome has not been achieved over a significant period of time. The tribunal considers that the primary reason the applicant has not achieved a complete set of educational outcomes of the applicant’s own choosing is because the applicant is not motivated to achieve that outcome. This casts significant doubt that the applicant will in fact achieve an outcome which is relevant to the stated future plan. The premise of the applicant’s claims is that a departure from Australia will only be made after the applicant’s own self-defined educational goals are met. Given the applicant’s study history, the tribunal is unable to foresee with any confidence when, or if, that time will come.

29. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212 (a).

    Conclusion on cl.500.212

30. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

31. 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

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

    Stephen Witts
    Member