Jagatjit Singh (Migration)

[2017] AATA 420

Jagatjit Singh (Migration) [2017] AATA 420 (13 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jagatjit Singh

CASE NUMBER:  1600279

DIBP REFERENCE(S):  BCC2015/3533285

MEMBER:Gabrielle Cullen

DATE:13 March 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 13 March 2017 at 11:33am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – Credible reasons for course changes – Several courses completed – Involvement in family business – Caring for family in India – Commitment to returning to India

LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulation 1994, Schedule 1, Schedule 2 cl 573.223(1)(a)

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 22 December 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 November 2015. 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 7 March 2013 on a subclass 573 visa valid to 9 December 2015. He departed Australia on 4 October 2015 and returned on 1 November 2015.

4. During the time the applicant has held a student visa or been applying for one the evidence from the Department decision[1] and that provided by the applicant at hearing and in documentation provided indicates he has been enrolled in the following courses with the following outcomes.

   ·Bachelor of Information Technology from 25 February 2013 to 17 June 2014, when he notified that he wished to cease the course. An academic record submitted by the applicant indicates that he successfully completed all 8 subjects studied in 2013 and 2 out of 3 subjects in Term One of 2014.

   ·Certificate IV in Commercial Cookery from 23 June 2014. On 18 September 2014 the COE was cancelled as the applicant notified that he wished to cease the course.

   ·Diploma of Management from 6 October 2014 to 26 October 2015 which was successfully completed.

   ·Advanced Diploma of Management from 1 June 2015 to 8 January 2016 which was successfully completed.

   ·Bachelor of Business from 25 July 2016 to be completed on 31 December 2017. Evidence from Holmes Institute indicates the applicant has completed 4 subjects undertaken in two semesters, has been given credit for 13 and has 7 subjects to complete the course. The information indicates he has completed approximately 70% towards achieving a Bachelor of Business.

   [1] The Department decision was attached to the Application for Review.

5. The applicant provided a Statement to the Department Indicating that he came to study IT in Australia but realised it was not what he was looking for. He claims he changed to cookery and hospitality due to the opportunities. He claims his visa was refused as he applied for a 572 visa, so he then chose to study a Diploma of Management and Advanced Diploma of Management leading to a Bachelor of Business. He claims he chose this course as his father owns a business in India which he wishes to manage on return. He claims he wants to finish the course and return and support his family. He claims his parents and sister are in India and we will need to support them if his father dies. He claims he will return to India on the completion of his studies and start his father’s business again.

6. In the decision, the delegate assessed the applicant against the criteria for a Subclass 573 visa on the basis of enrolment in the Bachelor of Business. The visa was refused on 22 December 2015[2]  because the applicant did not provide the evidence required to demonstrate he is a genuine student as required by cl.573.223 of Schedule 2 to the Regulations. The delegate was concerned that the applicant cancelled his enrolment in the subclass 573 stream and then applied in the subclass 572 sector without providing a reasonable explanation as to why. The delegate was concerned that the applicant changed from wanting to study in the Higher Education Sector stream to the lower Vocational Training level, breaching condition 8516. He was also concerned that the applicant had not provided sufficient evidence as to why completing the current courses will improve his career prospects.

   [2] The decision was attached to the Application for review.

7. The applicant submitted to the Tribunal the following documents:

   ·Letter from Holmes Institute dated 17 January 2017 confirming the applicant is currently enrolled in a Bachelor of Business, has completed 2 subjects and has been given 13 exemptions due to previous study. The letter indicates the student has 9 subjects left to complete the course. The Tribunal notes updated information from Holmes Institute received on 8 March 2017 indicates the applicant has now completed 4 subjects and has 7 to complete, having recently completed 2 subjects in the summer semester.

   ·Academic transcript indicating the applicant completed 8/8 subjects in the Bachelor of IT course in 2013 and 2/3 subjects in Term 1, 2014.

   ·Completion certificates and academic records for the Diploma of Management and Advanced Diploma of Management.

8. The applicant’s representative also provided a detailed written submission on 8 March 2017. She submits that the applicant advises that he did not complete his Bachelor of IT as he did not wish to pursue studies in IT as it was not the career pathway he wished to pursue. She submits he then enrolled in the cookery course as he was aware of his study requirements and he felt it would provide him with more opportunities. He applied for a subclass 572 and was the refused on the GTE ground. With the advice of the Department he looked for a suitable subclass 573 course and enrolled in the packaged Bachelor of Business course of which he has 7 subjects to complete.[3] She submits the applicant will on completion of his studies return home to India to restart the family business originally run by his father prior to his death. She submits that the applicant’s father ran a successful taxi business in which he served as a driver for Axis managers and staff. Enclosed were documents relating to the business.

   [3] The representative initially indicated it is 6 but Holmes institute advised it is 7. The representative at hearing indicated she incorrectly advised it was 6 and confirmed it is 7.

9. As to the applicant’s circumstances in his home country it is submitted there are no reasons to indicate why he would not return. It is submitted he has no family in Australia and after the death of his father he is required to return to India and care for his family. It is submitted that there are no circumstances in Australia which would prevent the applicant from returning home. As to his immigration history it is acknowledged that he failed to abide by condition 8516 as he changed his study pathway. It is submitted that he is a genuine student and was considering his study options and inadvertently breached condition 8516. It notes he is now enrolled in and studying in the Higher Education Sector.

10. On 8 March 2017 the Tribunal spoke and wrote to Holmes Institute and the applicant’s representative to ask for an updated transcript and to confirm his enrolment. Holmes Institute advised that he had recently passed the two subjects, HC 212 and KH2042 in the summer semester to 24 February 2017 and has seven subjects to complete the course.  Holmes advised that these results were not official until 13 March 2017 and therefore would not show on the applicant’s academic record.

11. The applicant provided receipts of fees paid towards the Bachelor of Business. He advised this did not include all the receipts and the full amount could be obtained from Holmes. They however indicate he has paid $3840 towards the Bachelor of Business.

12. The applicant appeared before the Tribunal on 9 March 2017 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. His representative also attended the hearing.

13. As to why he changed from the Bachelor of IT, breaching condition 8616, he said while he liked IT he realised he did not want to work in the area. He claimed he changed to cookery as he has a passion in the area but could not continue as the Department advised he had to be enrolled in a subclass 573 course. He provided evidence consistent with a person genuinely studying the Bachelor of Business. He indicated he has paid $7,800 towards the course. He confirmed on completion he would return home. He said he has a sister in Australia and a mother and sister in India. He said he has no military commitments in India or civil and political reasons which would serve as an incentive not to return to India. He described the value of the current course with regard to employment in India and that he wished to restart his father’s business.

14. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

16. 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)     …

17. 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.

18. 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.

19. For the reasons that follow the Tribunal has decided to remit the matter for reconsideration. The evidence indicates the applicant arrived in Australia in March 2013 on a subclass 573 visa and completed three semesters towards a Bachelors of IT. The transcript for the Bachelor of IT indicates the applicant successfully completed ten out of eleven subjects in the three terms he was enrolled in the IT course. While of concern that he withdrew from the Bachelor of IT in June 2014 and changed to a subclass 572 course, the Tribunal views as reasonable and understandable his evidence that he realised that he did not wish to work in IT. It views his completion of ten out of the eleven subjects to be indicative of a genuine student. Considering his age and his study record it accepts his evidence as credible as to why he changed courses.

20. While he withdrew from the Cookery course after only two months study in September 2014, since October 2014 the applicant has been enrolled and successfully completed a Diploma of Management and Advanced Diploma of Management. He is now enrolled in a Bachelor of Business, a subclass 573 course, having completed 70% of the course. The Tribunal views as indicative of a genuine student his study record and the payment of significant fees towards the current course.

21. The Tribunal is satisfied that despite abandoning his initial study plan, the applicant is eager and committed to study in Australia so he can improve his employment and career opportunities when he returns to India. It accepts his evidence that on completion of the current course in December 2017 he will return to India.

22. The Tribunal finds the reasons as to why he wishes to continue to study the course he is enrolled in as credible. 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.

23. The Tribunal accepts that the balance of his family resides in India. There is no adverse immigration record other than that discussed above. There is no evidence of military service commitments or political and civil unrest In India which would present as a significant incentive for the applicant not to return to his home country.

24. 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 meets cl.573.223(1)(a).

25. 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

26. 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