JARNAIL SINGH (Migration)

[2017] AATA 3174

JARNAIL SINGH (Migration) [2017] AATA 3174 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JARNAIL SINGH

CASE NUMBER:  1607858

DIBP REFERENCE(S):  BCC2016/1468167

MEMBER:Wendy Banfield

DATE:27 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 March 2017 at 7:35pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 572 (Vocational Education and Training Sector) – genuine temporary entrant – completed a general English course – no clear career plans – economic incentives to remain in Australia – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 1 Item 1222 Schedule 2 cl 572.223

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 15 April 2016 on the basis of his enrolment in a Certificate IV in Business with course dates 10 April 2017 to 10 December 2017; a Diploma of Business from 15 January 2018 to 9 December 2018 and an Advanced Diploma of Leadership and Management from 14 January 2019 to 12 January 2020. The delegate decided to refuse to grant the visa on 20 May 2016.

3. 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).

4. The delegate refused to grant the visa because he did not provide sufficient evidence to demonstrate he was a genuine student and therefore not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations. In summary, the delegate made the following findings:

   ·     Although the applicant had been studying since arriving in Australia until 26 February 2016, the explanation provided as to how studying in Australia will improve his prospects in his home country were not satisfactory.

   ·     It was noted the applicant has personal ties to India but they were not considered to be a strong incentive for him to return home, when considered against his lack of strong employment or economic circumstances in India.

   ·     The applicant has spent a considerable period of time as the holder of temporary visas  in Australia and the granting of a further student visa would allow him to extend his stay as a temporary resident. It was considered the applicant is maintaining ongoing residency in Australia through a number of temporary short stay visas.

5. The applicant appeared before the Tribunal on 23 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. With his application for review to the Tribunal, the applicant provided a copy of the decision of the delegate. The applicant also submitted to the Tribunal Confirmation of Enrolment for his planned studies in Australia and a written submission dated 16 March 2017.

   Written submission

7. In his written submission of 16 March 2017, the applicant stated he has no intention to stay in Australia on a permanent basis has he has family in India, he has a house and agricultural land in a village in Punjab. He stated that if he does not get a secure job, he can farm or lease his land for an income. The applicant declared his completed course and enrolment in further studies demonstrates he has an intention to study. He said if his visa is not granted he will have to pay for some study periods and he wants to secure options for his future in India. The applicant said if he wished to stay in Australia he would leave and apply for the proper visa subclass. The applicant disagreed that there are not many opportunities in India.

   The hearing

8. The applicant confirmed he understood his visa had been refused by the Department as the delegate had determined he did not fulfil all the requirements for the visa. The applicant said his family is involved in farming and he intends to get a job there or in a company nearby.

9. The applicant claimed that when he found out his visa was refused he was very confused and sought advice about what to do. He said he is not currently studying but he is enrolled in Certificate IV in Business. He last studied in March 2016 and since that time the applicant said he has been doing an ELICOS course. That course commenced on 23 May 2016 but the applicant did not complete it since he thought he had to go back to India once his visa application was refused.

10. The applicant first came to Australia in 2014 and has not been back to India since his arrival. He has so far completed a General English course. He was originally on a spouse visa but the relationship broke down. The applicant decided to stand on his own feet and he thought if he obtained qualifications here it would help him obtain a job when he left Australia.

11. The Tribunal asked the applicant why he had been enrolled in a number of courses that had been cancelled. He said that because his visa was refused he did not know what to do and he was not given time to complete his studies. The applicant said he would be embarrassed to return to India without having completed any studies. He said his intentions are to complete his studies, get a job and in the long term, help in the farming business. He wants to complete a Diploma of Business, Advanced Diploma of Business and Advanced Diploma of Leadership and Management. He said he hopes to get a managerial position in India.

12. In India the applicant declared he completed the equivalent of Year 12. He decided to study in Australia rather than India because he said he had to look after his family in India on leaving school, and then when he got married he came to Australia with his spouse. His original intention in coming to Australia was not to study; he was a dependent on his partner’s student visa. The applicant said he is currently working 20 hours a week collecting trolleys in a shopping centre which covers his groceries and rent. His future career intentions are to continue his studies and get a job back in India which will set his life up when he returns.

13. The applicant has his mother and two unmarried brothers in India and his mother supports him financially. He said he does not have family in Australia. According to the applicant, he will have completed his intended courses of study in 2020 at which time he plans to return. The applicant declared there are no military service commitments or civil or political issues that would prevent him from returning to his home country. He asked that he be allowed an opportunity to study.

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

    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 572.

16. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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. The Tribunal accepts the applicant has undertaken and completed a General English course while he has been in Australia but notes he did not continue with an ELICOS course he declared he started and has not commenced any further studies. The successful completion of courses is one of many considerations relevant to the assessment of whether the applicant intends to genuinely stay in Australia temporarily.

20. With respect to the applicant’s circumstances in his home country, the Tribunal accepts the applicant’s evidence that he has no military service commitments and there is no civil or political unrest that would act as an incentive for him to stay in Australia. However the applicant has not provided satisfactory evidence to demonstrate he does not have a strong financial incentive to remain in Australia. In his written and oral evidence, the applicant provided only general statements about wishing to find a job in India and if he does not obtain secure employment, he would farm or lease his land for an income. The Tribunal finds the applicant does not have clear plans about a particular field of future employment and he has not demonstrated how his intended studies in Australia would provide him with employment prospects or act as an incentive to return to India at the conclusion of his studies.

21. The applicant has his parents and two brothers in India; however he also has reasons to remain in Australia. The Tribunal is not satisfied that his family connections in India or would be a reason for him to leave Australia after his studies.

22. The Tribunal considered the applicant’s circumstances in Australia. He acknowledged he did not come here to study originally and was a dependent on his partner’s student visa. The applicant said when his relationship ended, he wanted to stand on his own and obtain some qualifications while in Australia. He is currently working as a trolley collector at a shopping centre which is covering his living expenses in Australia. He did not continue his English studies once his visa was refused and his enrolment was cancelled. The applicant’s planned course of study would involve him remaining temporarily in Australia until 2020 without any clear career objective upon his return to India. For these reasons, the Tribunal is not satisfied the applicant intends to stay temporarily having regard to the evidence advanced an considered cumulatively.

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 not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

24. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Wendy Banfield
    Member