Khindey (Migration)

[2018] AATA 2485

Khindey (Migration) [2018] AATA 2485 (7 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Varinder Singh Khindey

CASE NUMBER:  1707109

HOME AFFAIRS REFERENCE(S):           BCC2016/3843302

MEMBER:Meredith Jackson

DATE:7 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 07 June 2018 at 5:57pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – History of visa breaches – Study history of enrolment – No academic progression – Incoherent academic path – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
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 24 March 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 16 November 2016. 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 intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 is a genuine applicant for entry and stay as a student who intends to stay in Australia temporarily.

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

7. 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?

8. 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.

9. 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.

10. In considering the applicant’s circumstances, the Tribunal had regard to the specified matters in Direction 69 and to evidence submitted by the applicant prior to and at the hearing. The evidence supplied was:

    a.The delegate’s decision record

    b.Personal submissions

    c.Attendance and academic records for various courses

    d.Certificates of Enrolment

    e.Financial information and documents regarding property and estate arrangements

11. At the hearing, the Tribunal under section 359AA of the Act, referred the student to information about him held in the Provider Registration and Information Management System (PRISMS), explained its relevance in that the information might be the reason, or part of the reason to affirm the decision. The Tribunal invited him to comment on the information, or to seek time to consider it.

12. The database provides a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The applicant said he was prepared to hear the information immediately and said he understood why it was relevant to his case. The Tribunal referred to the record at various times during the hearing and at each time the applicant was invited to, and provided, comment.

    Background

13. The applicant first came to Australia on a Student (TU 573) visa specifically to study in the higher education sector. He enrolled to study English language as a prerequisite to a Master of Business degree at QUT University in Brisbane and was granted the visa under Streamlined Visa Processing (SVP) arrangements, which at the time simplified entry to Australian universities for international students. Once here, he did not complete either course. He cancelled the English component, did not pursue the Masters program, and instead applied for a certificate course in commercial cookery at a cheaper, more accessible vocational college that was not an SVP provider. He did not complete all aspects of the cookery course.

14. On 7 November 2016, the department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of his TU-573 visa on the basis of a potential breach of visa condition 8516. The condition requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa (which was to study English and a higher education course at an SVP provider). The applicant did not respond to the Notice and his visa was subsequently cancelled. When asked by the Tribunal why he didn’t respond to the NOICC, he said he that he had advice from his migration agent that he should instead seek a different visa, but he regretted that he did this.

15. On 16 November 2016, the applicant applied for a Student (TU-500) visa for the wider education sector. He had secured enrolment in a Master of Business Administration course at a different provider. This course was subsequently cancelled, which the applicant confirmed.

16. On 20 December 2016 the applicant was granted a WE-050 Bridging Visa (E) which restricted his work rights, but, he said, it did not restrict his study rights. He told the hearing he checked with the Department about it: “the Department said I could continue my study”. He took the opportunity to complete a three-month course that would satisfy his (incomplete) Certificate IV in Commercial Cookery.

17. On 1 May 2017 he enrolled in a Diploma of Hospitality Management but did not complete it. He produced evidence that his college required him to do vocational placements but he said he couldn’t because of his visa – no employer would take him on.

18. The applicant prior to hearing provided a COE for approval to study a Graduate Diploma of Management (Learning) at Lifetime International Training College, a non-university higher education provider. This is a 52-week course due to commence in July 2018. The college website says: This is a qualification (that) reflects the roles of individuals who apply highly specialized knowledge and skills in the field of organisational learning and capability development. This qualification may apply to  leaders and managers in an organisation where learning is used to build organisational capability. The course requires an IELTS score of 6.5. (The applicant has an IELTS score of 5.5). The applicant said this qualification would be of value in India in seeking higher level roles. He has not secured enrolment in a related Masters program but he said he wishes to pursue one on completion of the Graduate Diploma course.

    Findings

19. Having taken into account the specified matters in Direction 69, and other relevant circumstances, he Tribunal finds the applicant is not a genuine student who intends to genuinely stay in Australia temporarily, for the following reasons:

    a.The applicant has a history of breaching a visa condition. He sought his initial entry to Australia via SVP to pursue English language study and a Master’s degree and as described above, completed neither. He cancelled his English language course because, he said, he heard that other students were not benefitting from it. He claimed that instead of doing English and a Masters he would get more value from a one-year commercial cookery course in a vocational college. The Tribunal finds this explanation unpersuasive. The Tribunal asked the applicant whether, at the time, he thought about the value of completing the English program to qualify him for university-level postgraduate study and fulfil the basis on which his visa was issued. He stated he did not have much information about visa rules at that time. He had concluded from other students that the English study was a waste of time and money. The Tribunal finds this indicates a lack of seriousness about his studies that undermines his claims of being a genuine student.

    b.The applicant has a study history of enrolment in, then cancellation of courses that align with his visa preferences, rather than having a history of progressive educational attainment and a logical plan for his future. The Tribunal is not persuaded the applicant intends to complete his Graduate Diploma in Hospitality Management if granted the visa. It is not convinced he has approached his studies as a genuine student would. It finds he came to Australia under the SVP arrangements – which was a privileged entry system for the higher education sector—then switched to vocational education shortly after he got here, and to courses that were cheaper and easier, and even then he did not complete many of his study components. The Tribunal finds this further undermines his claims to be a genuine student.

    c.The applicant has not progressed in his studies since arriving in Australia. He has taken three years to arrive at a point academically that is below where he stood on arrival: his highest qualification remains a Bachelor of Arts degree. He planned to build on this with an Australian business Masters degree with prerequisite English to secure his future. This made academic and career sense. Yet he abandoned the plan once granted his Student (TU-573) higher education visa, and opted for a commercial cookery course at a level well below his initial tertiary attainment in India. While shifts in academic direction may be reasonable, a downward change in study level of this type and scale is unconvincing as a genuine study path. The applicant has not provided evidence of a prior history of interest in cookery or hospitality nor adequately explained why he chose to make a drastic change in level and direction and then switch again to a graduate level management course. These circumstances persuade the Tribunal the applicant is contriving enrolments for the purposes of maintaining residence in Australia rather than being a genuine student intent on staying temporarily.

    d.The applicant blames his Migration agent for misleading him and encouraging him to apply for a Student (TU-500) visa instead of responding to his visa cancellation notice, the NOICC, an omission that resulted in him having his visa cancelled, being issued a restricted Bridging visa and preventing him from applying for most other visas onshore.  He claims he did not scrutinise the advice at the time, nor satisfy himself of the best course of action, he just acted on the advice of the agent and applied for a different visa before the cancellation came through. The applicant also claims he didn’t understand what he was expected to do when he arrived in Australia. The Tribunal finds the student has not taken genuine responsibility for his study progression and his immigration status and this undermines his claim to be a genuine student.

    e.The applicant has a COE for a Graduate Diploma of Management (Learning) to commence in July, and the Tribunal notes his statement that he will seek to articulate to a Masters degree after that. He claims he will get enough credit from his Graduate Diploma to complete the Masters in six months. He has provided no evidence that this is possible, and the Tribunal considers that even if it were, he has not convinced it he has the academic discipline to achieve it. The Tribunal concludes the applicant does not have a coherent or consistent plan for his academic future and finds this weighs against his claims of being a genuine student who intends genuinely to remain in Australia temporarily.

    f.The applicant claims he has no intention of seeking permanent residency in Australia as he wishes to go home and work in the tourism industry, which he believes is booming. He provided a list of potential hospitality employers in India and stated there are reasons why he wishes to return there, which is to play his role in the family, and perhaps work in the family’s overseas businesses. He claims he would be better off working in India than Australia because Delhi is not far away from his home. These ambitions are in conflict at various times in his various submissions. He clearly has a circle of friends in Australia, because he said in relation to his Bridging visa status (no work) he is unable to meet his bills, and he is getting help from friends, borrowing money from them to cover some his expenses here. The Tribunal notes the applicant is a single man who has no compelling reasons to live in India other than being relatively near his parents and sister. He has a record in Australia of studying in courses below his previous attainment ambition, and since attaining his BA in India, he has pursued a near incoherent academic path. The Tribunal is not convinced the applicant is a genuine student who intends to remain in Australia temporarily.

20. 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).

21. 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.

22. 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

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

    Meredith Jackson

    
    

    Member