KUMAR (Migration)

[2018] AATA 1373

KUMAR (Migration) [2018] AATA 1373 (12 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NAVJOT KUMAR

CASE NUMBER:  1703810

DIBP REFERENCE(S):  BCC2016/3668614

MEMBER:Jennifer Cripps Watts

DATE:12 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 April 2018 at 5:24pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine temporary entrant – Poor academic progress – Applied for a Subclass 457 skilled work visa – No genuine intention to recommence studies – Course enrolments inconsistent with career goals

LEGISLATION
Migration Act 1958 s 65

Migration Regulations 1994 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 on 21 February 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 3 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 the applicant is a genuine applicant for entry and stay as a student.

4. The visa application that is the subject of this review was refused on 21 February 2017.  The applicant applied for review by this Tribunal on 3 March 2017, within time, and provided the Tribunal with a copy of the Department’s decision to refuse his student visa.  The applicant’s matter was constituted to this member and, on 9 March 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 12 April 2018.    

5. The invitation to the hearing also included information relating to what types of evidence and statements the applicant should consider providing to the Tribunal before the hearing, specifically addressing the issue of whether he “...is a genuine applicant for entry and stay as a student by referring to Direction No.69.”  The Tribunal attached a copy of an extract from the Migration Act 1958, Direction Number 69 – Assessing the Genuine Temporary Entrant criterion for Student Visa and Student Guardian Visa Applications to the invitation, for his ease of reference.  The applicant was informed in the cover letter to the hearing invitation that he should refer to the delegate’s written decision and the reasons why he did not meet the criteria for the grant of the student visa.  He was also informed he should provide a copy of his current Confirmation of Enrolment (COE). 

6. The applicant provided some documents to the Tribunal prior to the hearing.  SMS hearing reminders were sent to the applicant’s mobile number on 5 and 11 April 2018.

7. The applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments.  The applicant had indicated in his response to the hearing invitation that he required a Punjabi interpreter.  However, he informed the Tribunal he did not need the interpreter and the interpreter was excused from the hearing.

8. The applicant was assisted in relation to the review by his registered migration agent, Mr Ravi Kant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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. All primary criteria must be satisfied at the time a decision is made on the application. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student: cl.500.212.

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

11. 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.

    Background

12. The applicant is a 26 year old citizen of India.  In his visa application he has declared no marriages or dependants.  The applicant first arrived onshore on 27 March 2012 and has held student or related bridging visas up to the time of this decision.  He has lived in Australia, with his brother, an Australian Permanent Resident, up until December 2017 and now lives with a friend. 

13. The Tribunal has had regard to some of the matters raised in the delegate’s decision to refuse the visa, including that at the time of application:

    a.He had not provided evidence demonstrating he had sought any potential employment opportunities in his home country and did not have an offer of employment

    b.His stated career goal was vague and only referred to contemplating returning to India and pursuing a career with his Australian qualifications

    c.The applicant had been awarded a Master Diploma in Information Technology in India in 2010, but appeared not to have sought employment with the qualification in that or any related field, but instead came to Australia to study in 2012

    d.He had only travelled offshore once in four years (noting that he has at the time of this decision now made two more recent trips to his home country in December 2017 and March 2018)

    e.The applicant’s parents reside in India, the applicant has a brother who resides in Australia

    f.He had enrolled in short and relatively low cost VET courses and had not progressed academically to any higher level of tertiary study (and has still not progressed beyond VET level study)

    g.COE’s indicating he was enrolled to study a Diploma of Marketing from 11/01/2016 to 08/01/2017 (which he has subsequently provided evidence of finishing) and for an Advanced Diploma of Marketing and Communication  from 13/02/2017 to 12/08/2018 (which was subsequently cancelled in around September 2017 for non-payment of fees)

    Evidence provided to the Tribunal

14. The applicant has provided documentary evidence to the Tribunal, including copies of:

    a.A course completion letter, dated 12 December 2014, indicating he completed a six month Diploma of Management in July 2013, and attaching the transcript of academic record

    b.A course completion letter, dated 23 December 2014, indicating he completed a six month Diploma of Human Resources (HR) Management in March 2014, and attaching a transcript of academic record

    c.A one year Diploma of Marketing, from 11/01/2016 to 08/01/2017, and attaching a transcript of academic record

    d.A COE for an Advanced Diploma of Marketing and Communication from 16/04/2018 to 12/04/2020 that was generated on 06/04/2018, the week before the hearing (the same course as the one that was cancelled in September 2017 but with a different education provider)

    e.The applicant’s Australian tax return statements

15. The Tribunal has considered the evidence, including the applicant’s oral evidence and the written and oral submissions of the applicant’s representative, and is of the view that the applicant has not made satisfactory academic progress in the six years he has been onshore holding a student ore related bridging visa.  The applicant has completed three courses since 2012, a Diploma of Management in 2013, a Diploma of Human Resources in 2014 and a Diploma of Marketing in 2017.  He has now enrolled in an Advanced Diploma of Marketing, from 16/04/2018 to 12/04/2020.

16. At the hearing, the applicant was asked if he has any other visa applications with the Department and said he is waiting for a decision on his subclass 457 skilled visa that was lodged in March 2018.

17. The applicant said he has been working, 20 hours a week, as a mechanic and that the 457 skilled visa application is with Ultratune Melbourne, the sponsor.  He said he does not have a formal qualification as a mechanic but that he has passed the skills assessment.  The applicant was asked how long the sponsorship would be for and said he was not sure but it would be from two to four years and he is hopeful there will be an outcome within the next few months.  The Tribunal considered the applicant’s answers about the 457 application to be somewhat vague and is not persuaded that the applicant does not know how long the sponsorship is for.

18. The applicant has provided the Tribunal with a COE indicating he is enrolled and due to commence study at the Duke College in Sydney on 16/04/2018, for two years.  He was asked, if the 457 visa is granted, what he intends to do about his study.  He said he will still do the course, an Advanced Diploma in Marketing, but through Duke College (the same provider) in Melbourne. 

19. The Tribunal has formed a view that the applicant has enrolled in the Advanced Diploma of Marketing for the purpose of supporting his student visa review and to wait until an outcome in his 457 visa application, not because he is genuinely committed to studying the course to enhance his career opportunities in India. 

20. The applicant is claiming he intends to pursue a career in India in Information Technology, after he finishes the Advanced Diploma in Marketing in April 2020, whilst at the same time pursuing employment as a mechanic to obtain a 457 visa.  If studying is his priority to achieve a qualification that will enable him to return to India to start his own Information Technology business, the Tribunal does not accept that his pursuing a 457 skilled visa as a mechanic is consistent with this stated career goal.   

21. In written submissions, it is said that the applicant accepted the part time job he currently has as a mechanic because he could not get any other job.  However, he is now intending, if he is granted a 457 visa, to work as a mechanic for two to four years.  Working as a mechanic in Australia will, in the view of the Tribunal, be unlikely to equip him with relevant skills and experience to run his own Information Technology business or enhance his prospects of success.  The Tribunal is not convinced that the applicant genuinely intends to return to India to work in Information Technology and has formed the view that he is hoping to find a pathway to remain in Australia.

22. The applicant was asked why he discontinued his studies when the student visa was refused in 2016 and said that it was because his path wasn’t clear and that if he started the course and the Tribunal hearing was soon after that, he would have an incomplete qualification and on his previous agent’s advice he decided to stop studying until he got the Tribunal invitation.  He said he was also mindful he did not want to waste his parents’ money by starting a course he may not finish.  When the applicant received the Tribunal’s invitation to the hearing, he enrolled in the Advanced Diploma the next day, which is consistent with his stated plan, but does not satisfy the Tribunal that he is genuinely intending to re-commence study or complete the course if he is granted the 457 visa. 

23. It is accepted that the applicant has satisfactorily completed the courses he has undertaken.  However, in the Tribunal’s view he has made slow and little academic progress and has not advanced beyond Diploma level in the six years he has been onshore.  The applicant brought the issue the delegate’s putting negative weight against him studying low cost VET courses of short duration.  It was pointed out to him that perhaps what was meant is that as he has a Master Diploma in Information Technology from India, it might reasonably be expected that he would enter the Australian tertiary education system at a higher level than Certificate III and by now have progressed to higher study.  The applicant was told that this was the Tribunal’s view, in his circumstances.  The applicant’s representative submitted that the level of education the applicant reached in India was really about the equivalent of a low level Diploma course in Australia.  Even if this is accepted, the fact remains that the applicant, over a period of six years, still has not progressed beyond Diploma level in Australia.  He was told that his enrolling in these VET courses seemed to suggest that he might be using the student visa programme to extend his time onshore until a better opportunity arose.  The applicant disagreed.  However, the Tribunal’s view is that a better opportunity has arisen, that is, the subclass 457 visa sponsorship.

24. The applicant said that from the time his student visa was refused to the time of this decision, he has continued to study informally online, but provided no corroborative evidence.  Although it is noted that he has held a bridging visa during this time, the Tribunal would consider it reasonable to think that an applicant for a student visa, wanting to gain a qualification so he could return to his home country and start an IT business, would continue to study to progress academically so as to move further towards meeting his career goals whilst onshore holding a visa that did not prevent him from studying.  The Tribunal does not accept as a reasonable excuse that the applicant cancelled his enrolment in 2016 because he thought the Tribunal hearing might be scheduled within three months.

25. 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).

26. The Tribunal has considered the evidence individually and cumulatively and is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

27. 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

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

    Jennifer Cripps Watts
    Member