Kaneria (Migration)

[2019] AATA 1990

Kaneria (Migration) [2019] AATA 1990 (24 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Ishit Kiritkumar Kaneria

CASE NUMBER:  1728553

DIBP REFERENCE(S):  BCC2017/3123914

MEMBER:  Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 April 2019 at 3:22 pm (VIC time)

DATE OF WRITTEN RECORD:                19 June 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 19 June 2019 at 1:29pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time in Australia – poor academic progress – alcohol problem – little evidence of improvement in academic performance – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 April 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral statement of the decision and reasons of the tribunal in case number 1728553 in relation to an application for review by Ishit Kiritkumar Kaneria, the applicant.

4. The applicant is a citizen of India. He seeks review of a decision made by a delegate of the Minister on 26 October 2017 refusing to grant him a student visa under section 65 of the Migration Act. He applied for the visa on 29 August 2017. The delegate in this case refused to grant him the visa because the delegate considered that he did not satisfy the requirements of clause 500.212 of schedule 2 of the Migration Regulations.

5. Specifically the delegate did not consider him to be a genuine applicant for entry and stay as a student. A copy of the delegate’s decision was provided to the tribunal with the review application filed on 16 November 2017.

6. The applicant appeared before the tribunal today to give evidence and present arguments. The applicant was assisted in relation to hearing by his registered migration agent, Ajay Bansal. The tribunal hearing was conducted with the assistance of an interpreter of the Gujarati and English languages although I note that the interpreter was not drawn upon at any stage because of the applicant’s adeptness in speaking English.

7. The criteria for a subclass 500 student visa are set out in part 500 of schedule 2 of the Regulations. The primary criteria in clauses 500.211 to 500.218 must be satisfied by the applicant. Whether an applicant satisfies the criteria is to be determined at the time the tribunal’s decision is made.

8. The issue in this case is whether the applicant satisfies the primary criteria contained in clause 500.212 of the Regulations. That clause is otherwise known as the genuine temporary entrant criterion. It states for a student visa application to be successful the applicant must be a genuine applicant for entry and stay as a student in Australia. The word ‘genuine’ is not explicitly defined in the Regulations; however it may be taken to mean ‘real’ or ‘true’ and not ‘phony’ or ‘fake’.

9. Clause 500.212 directs attention to two specific considerations. First, is that an applicant will be a genuine applicant because he or she intends genuinely to stay in Australia temporarily. That requirement suggests that a student visa applicant must intend to stay in Australia for a limited time only, not permanently. It is a requirement that clearly reflects the temporary nature of being a student. A person chooses to study to meet a passing need. That passing need is to obtain specific skills and one or more qualifications that will typically allow the person to obtain a better paying job.

10. A genuine student is therefore a person who studies over a discrete limited period of time. Once they have had a reasonable amount of time to complete their studies successfully allowing for the occasional hiccup, the genuine student visa applicant is expected to depart

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Australia and return to their home country where they will put their newly acquired skills to economically productive use.

1. Secondly, clause 500.212(b) states an applicant will be a genuine applicant because he or she intends to comply with the conditions attaching to student visas. The most important of these conditions oblige the visa holder to remain continuously enrolled in a registered course of study and to make satisfactory progress in their studies for the currency of the visa. Those conditions reflect the very essence of being a student. To be a genuine student visa applicant the applicant must therefore demonstrate they intend to do things that students are expected to do, study and successfully complete their course requirements.

2. In considering the application of clauses 500.212(a) and (b) the Regulations oblige the tribunal to have regard to the applicant’s circumstances, their immigration history, their stated intentions, and their history of compliance with conditions of previous visas granted. The tribunal must also have regard to direction 69 issued by the Minister on 1 July 2016, which obliges the tribunal to consider several factors before reaching a decision on any visa application.

3. These factors elaborate upon the regulatory criteria. They relate to the applicant’s circumstances in their home country, their potential circumstances in Australia, the value of the applicant’s proposed course of study to their future, the applicant’s immigration history, and a range of other factors.

4. Finally I note that specific considerations referred to in both the Regulations and Direction 69 are not exhaustive. The tribunal may have regard to any other matter that is relevant in determining whether an applicant is a genuine applicant for entry and stay as a student in Australia.

5. Those are the principles which I have to apply. I now turn to consider and refer to the merits of the applicant’s case. The applicant is still quite young. He is only 24 years old. He is single and not in a relationship and nothing appears to be ‘on the cards’ in that regard. His parents reside in India. His father is 59 and his mother is 54. He apparently comes from an educated family and that is apparent by the way that the applicant presents. He appears to be very articulate and very intelligent.

6. He states, and I accept, that he has an older sister who is 31 and she is a surgeon as is her husband. A most impressive family background. He states that she has nearly been in the UK for two and a half years. The applicant has been here for almost six years, which will be in July of this year that is in Australia.

7. The applicant’s immigration history insofar as Australia is concerned is most concerning to the tribunal for the purposes of the present application on review. The applicant first arrived in Australia on 8 July 2013 on a higher education 573 visa. That visa had been granted by the Australian Government on the basis that the applicant would undertake a Bachelor of Mechanical Engineering. As the applicant stated in evidence, it was a four year course. It was to be undertaken at RMIT University in Victoria, and it started shortly after he arrived and it was due to be complete in 2017.

8. The applicant stated in evidence that he completed successfully the first semester of his studies. He was only 18 years old, extremely young, straight out of high school, when he first arrived in Australia. And the applicant stated that in the first semester he passed everything, he did very well. But therafter things started to change the following year. According to the applicant’s evidence, and I accept this evidence, the applicant said his father suffered a stroke and/or a cardiac arrest. Although there was no evidence

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corroborating this I ultimately accept that this happened and that it had a significant effect on the emotional wellbeing and stability of the applicant.

1. The applicant stated he is one of two children in the family with his sister being married and with her own responsibilities as a doctor. A significant burden emotionally fell upon the applicant with respect to the responsibility of his father’s health. It took a toll on the Applicant. He had his responsibilities as a student in Australia and he felt torn, it would seem, with respect to that obligation as a dutiful son with respect to his ailing father and his responsibilities to be a student in Australia and complete successfully his course.

2. That was only one factor which led to the deterioration in the applicant’s academic studies. The applicant also stated that he kept ‘bad company’ and this appears to have led to consumption of alcohol and spending a lot of money on things which he probably should not have spent the money on. He was receiving approximately $3,000 per month from his family whilst staying in Australia and it appears that a lot of that money was being wasted on socialising, going out, and drinking alcohol.

3. The applicant stated, and the tribunal accepts, that he did appear to have a problem with drinking a lot – beers and scotch in particular. And at one stage it appears he was drinking on a daily basis half a bottle of scotch, which by any assessment is too much alcohol.

4. Obviously all of this had an impact on his studies and it deteriorated as is evident from the academic record of the applicant. Ultimately he did not successfully complete the Bachelor of Mechanical Engineering and he discontinued the course. Really, his only academic success was in the very first six months of his arrival in Australia. Thereafter his academic progress in relation to anything can only really be described as totally inadequate and poor. It certainly does not reflect the purpose for which the visa was ultimately granted.

5. The applicant ultimately told his mother about his academic failings after being confronted by his mother as to what he was doing with all the money that they were sending him in February 2017. She was extremely angry understandably as to the applicant’s failing to progress successfully his Bachelor of Mechanical Engineering.

6. The applicant stated in evidence that it was around this time that he started to turn his life around and recognise that what he was doing was wrong and that alcohol was a problem. He stated in evidence that he tried to get back on track. Unfortunately he did not do so. He stated that he went to IDP, an education agent, who advised him to enrol in a Bachelor of Information Systems at Holmes Institute. He started that in about mid-July 2017 after doing an English course first. He did not succeed in that regard and he quit approximately one month after starting the Bachelor of Information Systems. So that too proved an unfruitful education pursuit.

7. It was around this time that he realised he would need to apply for another visa or to extend his stay so that he could study and get some kind of qualification in Australia. And so he made that application and ultimately that was refused in the second half of 2017.

8. After the refusal of the visa the applicant had a significant amount of time to get his life back on track and do what he was supposed to do, which was study and study successfully. The tribunal inquired at some length as to what exactly he was doing in 2018. The applicant could say little more than trying to get his life back together, so that he could study successfully. But in terms of producing anything by way of enrolment or successful course completions or course starts he was unable to do so. So the entire 2018 went by without anything to show for it in terms of educational pursuits and success.

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1. The applicant’s migration agent submitted that there may still have been an underlying problem with alcohol and that is most likely true. The applicant stated in evidence that his alcohol consumption is now under control or at least more than it was way back in 2014 to 2016 and indicated that he only drinks on weekends.

2. Certainly when the applicant presented himself today at the tribunal hearing, as I stated before, he comes across as very intelligent, very articulate, and somebody who would seem to be quite capable of achieving something academically, certainly a Bachelors degree at the very least.

3. The tribunal is sympathetic to the applicant’s plight with respect to alcohol consumption as it affects so many people in life. It is a ‘social evil’ as many might say. But the problem is that, at some point, the applicant has to take responsibility for his own life and stop consuming alcohol and focus on that which will lead to a more prosperous future.

4. He has had almost six years to start and complete something by way of an educational qualification of respect from an Australian education institute. He has achieved essentially nothing other than a successful first semester in a Bachelor of Mechanical Engineering course, which does not amount to any formal qualification which yields something valuable for his future career.

5. The basis of the present application that is now before the tribunal is a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management to be undertaken, if the visa is granted, commencing April 2019 and being completed by October 2021.

6. The tribunal ultimately accepts that these types of qualifications, if successfully completed, would be of value to the applicant’s long term career aspirations. Any qualification obtained from an educational institution of repute in Australia is recognised certainly in India as something of value and is likely to dictate a reasonable income.

7. I also accept the applicant’s evidence that these qualifications would be of benefit to him both in helping his father with his business once he were to return to India upon their successful completion.

8. Unfortunately given the history of the applicant over almost six years the tribunal has very little faith, if any at all, in the applicant’s ability to actually successfully complete these courses. Indeed on balance the tribunal takes the view that he will not successfully complete these courses, if he is given the opportunity to actually start and finish them. That assessment is based on the consistently poor performance of the applicant with respect to his educational pursuits that he has chosen to undertake or at least start to undertake in the time that he has been here.

9. He has been here too long. The passing need has now passed. He has been given the opportunity and he has effectively, in the tribunal’s view, squandered that opportunity. As I said, the tribunal does have some sympathy with respect to his alcohol consumption but he has not taken the opportunity to deal with that effectively and efficiently in the time that he has been given to stay here and study.

10. The tribunal has had regard to all other aspects that are required to be given in respect to direction number 69 and the Regulations. The tribunal accepts that he does not have very strong ties to Australia although he has been here for six years and given the economic disparity between India and Australia by any objective assessment after that period of time he has probably grown attached to the way of life in Australia and may indeed prefer not to go back to India unless he has to. He obviously does have his parents in India and the

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tribunal accepts that the culture of India is such that family ties are indeed significant. But on balance the tribunal does not consider these to be significant pulling factors back to India.

1. The tribunal has no concerns with respect to military service, civil unrest or political problems. The tribunal has no concerns with respect to immigration history in other countries.

2. In all of the circumstances on balance it should be very clear what my view is. Ultimately after considering the submissions as best as were to be able to be advanced by the applicant’s migration agent, the overwhelming factor that leads me to the conclusion that I reach is the terrible performance over the last five to six years that the applicant has with respect to his studies in Australia.

3. Therefore, on balance I am not satisfied that the applicant genuinely intends to stay temporarily in Australia as a student. In case number 1728553 the tribunal affirms the decision not to grant a student temporary class TU visa.

   DECISION

4. The Tribunal affirms the decision under review.

   Dr Jason Harkess
   Member

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