Jatinderpal Singh (Migration)

Case [2023] AATA 137

Jatinderpal Singh (Migration) [2023] AATA 137 (19 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jatinderpal Singh

REPRESENTATIVE:  Ms Carina Ford

CASE NUMBER:  2210147

HOME AFFAIRS REFERENCE(S):          BCC2016/3135291

MEMBER:T. Quinn

DATE:19 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 January 2023 at 3:12pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit and Family Court remittal – genuine student – genuine temporary entrant – enrolment in a registered course – applicant changed to Vocational level courses – no academic progress – lengthy gap in studies – maintaining ongoing residence in Australia – decision under review affirmed       

LEGISLATION

Education Services for Overseas Students Act2000
Migration Act 1958, ss 65, 338, 347, 359, 499; Direction No 69
Migration Regulations 1994, Schedule 2 cls 500.211, 500.212

CASES

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482
Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372
Khan v Minister for Immigration & Another [2019] FCCA 565
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor, file number MLG1550/2018
Tshering v Minister for Home Affairs [2019] FCCA 2667
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. On 21 September 2016, the applicant applied for a Student visa (the visa) to undertake study in Australia (‘the application’).[1]

    [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).  At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

  2. On 25 January 2017, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis that the applicant did not satisfy the genuine temporary entrant requirements in relation to student visas.[2]

    [2]See clause 500.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants be genuine applicants for entry and stay as a student. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application

  3. On 1 February 2017, the applicant applied to this Tribunal for a review of the delegate’s decision.[3]

    [3] Pursuant to sections 338(2) and 347 of the Act.

  4. On 10 May 2018, a Member of this Tribunal orally affirmed the delegate’s decision to refuse the applicant’s student visa and a written record of this…

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Jatinderpal Singh (Migration) [2023] AATA 137
Case
[2023] AATA 137
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Jatinderpal Singh, an Indian citizen, against a decision to refuse his Student (Temporary) (Class TU) visa, subclass 500. The appeal was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the applicant was a genuine student and a genuine temporary entrant, as required by migration law. This involved assessing the applicant's enrolment in registered courses, his academic progress, the significant period of time he had spent in Australia, and his intentions regarding his residence.

The Court considered the Minister's Direction, acknowledging its lawful authority and the obligation to apply it where relevant. However, the Court also recognised its independent role as a statutory body to reach its own conclusions on the merits of the case, applying established case law regarding the approach to guidelines. The Court accepted the applicant's evidence that he found higher education courses too difficult and that his proposed vocational studies were consistent with his educational background. The Court noted the applicant's lengthy continuous stay in Australia since 2013 and his change from a Bachelor of Information Technology course to vocational automotive courses, which occurred in breach of his previous visa conditions.

The Court affirmed the decision to refuse the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Direction is a lawful direction of the Minister.[7] I am therefore bound to consider and, to the extent that its terms are relevant, apply it to the applicant’s case.[8] Accordingly, the terms of the Direction and their application to the applicant’s case have been considered in relation to material before me. However, I recognise that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor in the Direction is relevant and applicable, independently of any conclusions reached by the delegate. In this regard, I note well established case authority as to the proper approach by decision makers to guidelines such as the Direction[9] and McNab J’s view that such guidelines may not be relevant where the matters raised by an applicant, either upon the application or at merits review, do not raise facts which engage particular matters identified by those guidelines.[10] [7] In accordance with section 499 of the Act. [8]FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555, [10], [34]; Chen v Minister for Immigration and Border Protection [2017] FCA 46, [29]; Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112, [60]-[73]; Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482, [8]; Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [10]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [53] Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345, [27]-[28].[9]Kaur v Minister for Home Affairs & Anor [2019] FCCA 1372 (at [49] and [51]), Khan v Minister for Immigration & Another [2019] FCCA 565 (at [35]) and Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47]).[10]Tshering v Minister for Home Affairs [2019] FCCA 2667 (at [44]-[47] per McNab J).CONSIDERATION OF CLAIMS AND EVIDENCE The applicant in this case is a 29-year-old male Indian citizen who first arrived in Australia on 5 May 2013.[11] He has remained onshore since that time without any travel to his home country.[12] Prior to coming to Australia, the applicant completed High School in 2012 in India.[13] [11]See the questionnaire.[12]Ibid.[13]See the questionnaire and the delegate’s decision. The applicant initially arrived in Australia to complete a Bachelor of Information Technology on a Higher Education Sector visa, however, he ceased his Bachelor course in April 2014 and, in breach of the conditions of his Higher Education Sector visa, enrolled in vocational level courses in the automotive field.[14] The applicant has made submissions that his agent lied about the Department’s approval of his downgrade in education level and also gave evidence at hearing that having never completed any study in the Higher Education sector, Bachelor level courses were too hard for him. I accept the applicant’s evidence at hearing in relation to his level of education and consider the study he is proposing is relatively consistent with his current education level. [14]See the questionnaire.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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