Kahlon (Migration)

[2018] AATA 4129

Kahlon (Migration) [2018] AATA 4129 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh Kahlon

CASE NUMBER:  1713297

HOME AFFAIRS REFERENCE(S):           BCC2017/790317

MEMBER:Stephen Witts

DATE:12 September 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 12 September 2018 at 2:18pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine student – unsatisfactory course progress – no reasonable reason for not undertaking study in home country – no evidence of significant incentives to return to home country – use of student visa program to extend stay – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 and Border Protection on 9 June 2017 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 28 February 2017. 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. On 7 August 2018 the applicant was invited by the Tribunal to provide advice regarding the applicant’s proposed course of study and his entry and stay in Australia as a student. The Tribunal provided a request for Student Visa Information questionnaire and requested that the applicant complete this questionnaire and return it to the Tribunal. The written information requested in the attached questionnaire was required to be received by the Tribunal by 21 August 2018. This information was not provided to the Tribunal. The applicant was informed by the Tribunal that if it did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The applicant was informed that he would also lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments.

5. On that basis the Tribunal proceeded to making a decision based on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 genuinely intends to stay in Australia temporarily.

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

8. 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?

9. 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.

10. 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.

11. The applicant was provided a copy of Ministerial Direction 69 in the Tribunal’s letter to the applicant on 7 August 2018.

12. According to the delegate’s decision record, provided by the applicant, the applicant was granted his initial Student visa subclass TU573 on 9 January 2014 valid until 15 March 2017 to study a Bachelor of Information Technology. The applicant subsequently arrived in Australia on 21 January 2014.

13. According to the delegate’s decision record the applicant’s confirmation of enrolment for this bachelor course was cancelled due to unsatisfactory course progress on 5 December 2014. The applicant’s student visa TU573 was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary criteria for the grant of a visa. One of the primary criteria for the grant of that student visa is that the applicant be enrolled in, or is the subject of a current offer of enrolment in, a principal course. The delegate contended that the applicant was in breach of his visa on the basis.

14. According to the delegate the applicant remained on his TU higher education sector visa and maintained enrolment in vocational education.

15. The applicant provided a statement to the delegate (delegates file folio 34-37) where he stated that, in regards to his arrival in Australia:

    “I am interested in having my own business in India. Therefore, I took admission in American college to study diploma and advanced diploma of Management with full confidence and hard work. I got admission in American college after having reviews from a few friends as I did not want to take any chance of my future”.

16. The applicant, in this statement, also submitted in regard to his future plans:

    “Diploma and Advanced Diploma of Business will enable me to acquire expertise in business principles and strategies. Since diploma of leadership and management has helped me so far to acquire knowledge related to self-management, team work, workplace relations, and various laws of the organisation or the business has to abide by to ensure smooth functioning a long lifetime. Upon completion of diploma and advanced diploma of business, I will be able to develop great business strategies and innovative ideas providing a chance to study in depth about organisational development and business functions, marketing, planning advertising etc.”

17. The applicant, in this statement, also submitted in regard to his family ties:

    “I have planned to move back to India after successful completion of my studies. With the help of international studies and valuable experience I will be able to strengthen my father’s business. Education and experience is a crucial part of establishing any kind of business. My father wasn’t much educated but he always wanted me to attain high studies from abroad. It is not worthwhile paying good amount for studying in a reputed institution and then not getting excellent grades. So I assure you that I will not pose any kind of burden on anyone as I am financially well off and I can manage my livelihood as well while my stay in Australia. I have no further interest in staying there apart from finishing my studies”.

18. The Tribunal has considered the material in the delegates file, specifically the statement provided to the delegate above, and to all the material in the AAT file, specifically the delegate’s decision record and the other communications sent to the applicant; and finds that the applicant is not a genuine applicant for entry and stay as a student.

19. The applicant has not provided reasonable reasons for not undertaking his study in his home country or region as similar courses are already available there.

20. The applicant has not effectively addressed the extent of his personal ties to his home country and whether those circumstances would serve as a significant incentive for him to return to his home country. The Tribunal finds that the applicant does not have significant personal incentive to return to his home country.

21. The applicant has not addressed any military service commitments that will present as a significant incentive for the applicant not to return to his home country or the extent of any political and civil unrest in the applicant’s home country that would influence the applicant’s motivation for applying for a student visa.

22. The applicant has not addressed any of the economic circumstances that would present as a significant incentive for the applicant not to return to his home country. These circumstances include consideration of the applicant’s circumstances relative to the home country and to Australia.

23. The applicant has not addressed the value of his proposed enrolments to his future other than as stated above and has not demonstrated the relevance of his proposed courses to his proposed future employment either in his home country or in a third country.

24. The applicant did not address the amount of time he has spent in Australia and whether his student visa would be used primarily for maintaining ongoing residence in Australia and why the applicant has undertaken a series of short inexpensive courses.

25. The Tribunal finds that the applicant is using the student visa program to circumvent the intention of the migration program and is not a genuine applicant for entry and stay as a student.

26. The Tribunal finds that the applicant was in breach of visa condition 8516 as he was not enrolled in a principal course from 5 December 2014.

27. 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

28. 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.

29. 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

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

    Stephen Witts
    Member