Kumar (Migration)

[2017] AATA 3152

Kumar (Migration) [2017] AATA 3152 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vinod Kumar

CASE NUMBER:  1616322

DIBP REFERENCE(S):  BCC2016/2416893

MEMBER:Adrienne Millbank

DATE:19 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 19 December 2017 at 4:52pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Whether the applicant is a genuine applicant for entry and stay as a student – Original intended studies not undertaken – Multiple, unrelated courses undertaken – Lack of academic progress – Limited incentives to return to home country – Decision 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 on 21 September 2016 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 20 July 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). The Delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily. A copy of the record of decision was provided to the Tribunal by the applicant.

4. On 20 October 2017 the Tribunal sent the applicant a letter inviting him to provide information regarding any current enrolment in a registered course of study, and information in support of his claim to genuinely intend to study in Australia temporarily. The applicant was requested to provide the information by 3 November 2017. He was advised that if he could not provide the information by 3 November 2017 he could request an extension of time, but that this request had to be received by the Tribunal by 3 November 2017.

5. The applicant was advised in the letter that if the Tribunal did not receive the information requested 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. He was also advised that he would lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not respond to the letter by 3 November 2017. On 8 November 2017 he requested an extension of the timeframe to respond. However, as his request for a postponement was made outside the prescribed timeframe, an extension could not be given. The Tribunal advised the applicant that it had no power to invite him to a hearing, and that it would proceed to make a decision on the material before it.

7. On 15 November 2017 the Tribunal wrote to the applicant inviting him to respond, by 29 November 2017, to information in his Provider Registration and International Student System record indicating that he was not enrolled in a course of study. On 27 November 2017 the applicant provided a Confirmation of Enrolment, created 24 November 2017, for a Graduate Certificate in Leadership Diversity course from 19 September 2018–22 December 2019, at Newton College, Brisbane.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant was born in India in 1989 and is 28 years old at time of decision. He first arrived in Australia on 23 February 2014 on a Student (subclass 573) visa, with the stated intention of pursuing tertiary-level studies. At the time of application he was enrolled in a Master of Business Administration course with Holmes Institute. The Delegate in the record of decision however noted no evidence of course progression and no evidence of course completion for any of the diploma-level courses the applicant had enrolled in after October 2015. The Delegate formed the view that the applicant was using the Student visa program as a means of maintaining ongoing residence in Australia.

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. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

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.

    Does the applicant intend genuinely to stay in Australia temporarily?

12. 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.

13. 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.

14. At the time of application in a written statement, dated 15 September 2016, in support of his claim to be a genuine temporary entrant, the applicant claimed that an MBA from Australia would provide him with opportunities to work as a business manager in India. He claimed that the course he was enrolled in, at Holmes Institute, would provide him with a globally-recognised degree.  He claimed that on completion of the course he intended to return home to India to look after his young brother. The applicant cancelled his enrolment in this course on 27 September 2016, following the refusal of his visa application.

15. According to his PRISMS record, between 17 February 2014 and 18 October 2017 the applicant enrolled in eight courses: English language proficiency; Diploma of Management; Master of International Tourism and Hotel Management (twice); Master of Business Administration; Advanced Diploma of Management; Advanced Diploma of Leadership and Management; Certificate IV in Commercial Cookery. Of these, he completed three: English Language Proficiency 17 February–6 June 2014; Diploma of Management 30 March–4 October 2015; and Certificate IV in Commercial Cookery 17 March 2017–12 December 2016.  His enrolments in all the other courses were cancelled for the reasons of ‘Non-commencement of studies’; ‘Unsatisfactory course progress’; or ‘Student Notifies Cessation of Studies’.

16. At the time of decision, as noted, the applicant is enrolled in a Graduate Certificate in Leadership Diversity course at Newton College, with a commencement date of 8 January 2018. The Tribunal notes that the applicant did not enrol in this course until invited to comment on the fact that he did not appear to be enrolled in a relevant course of study when he lodged his review application. The Tribunal further notes that the Delegate had noted, in the record of decision, that the applicant enrolled in his MBA course only ten days before lodging his visa application. It appeared to the Delegate that the applicant had recommenced studying for the purposes of obtaining a visa, rather than because of genuine interest in his nominated area of study and overall academic progress.

17. In his written statement dated 14 September 2016 the applicant explained his lack of course progression (his failure to pursue the master’s program which was his stated objective for studying in Australia), and his enrolment in lower-level courses, as due to homesickness and culture shock. The Tribunal notes that two of the three courses that the applicant completed were undertaken in his first two years in Australia, when he would have been most affected by culture shock and homesickness. No evidence was provided that the applicant has returned home to visit family since he arrived in Australia in February 2014, which might be expected if he was suffering homesickness. For these reasons the Tribunal does not accept the applicant’s claims that his lack of course completion or progression is reasonably explained by homesickness and culture shock.

18. The applicant further claimed in his statement dated 14 September 2016 that he was motivated to return to India to ‘look after his young brother’. The Tribunal notes that the applicant did not indicate that he has a younger brother in his application form. No argument or evidence was provided by the applicant in support of his claim to intend to return to India to care for his brother. No evidence was provided, as noted above, that the applicant has returned home to visit his brother or other family members since he arrived in Australia in February 2014. The Tribunal notes that the applicant is single and that he has lived in Australia for nearly four years, and does not accept, on the evidence provided, that his circumstances support his claim to genuinely intend to return to India.

19. The applicant claimed in his statement that an MBA from an Australian institution would provide him with the opportunity to work as a Business manager in India, because employers in India prize Australian qualifications and the Holmes Institute would equip him with a ‘globally recognised degree’. He claimed that his career goal was to be in a managerial role. The applicant however cancelled his enrolment in this MBA course on 27 September 2016, and enrolled in a Certificate IV course in Commercial Cookery, from 12 December 2016–17 March 2017. The Tribunal notes that the applicant already had a Bachelor Degree of Hotel Management and Catering Technology from a university in India. The Tribunal notes that the applicant had already fulfilled the requirements for a Diploma of Management at the Australia National Institute of Business in October 2015, and that he failed to complete any of the subsequent managerial courses he enrolled in, in International Tourism and Hotel Management; in Leadership and Management; and an MBA.

20. The applicant’s studies in Australia after October 2015 have not improved his employment prospects in India. For the reasons discussed above, Tribunal is not satisfied that the applicant enrolled in these courses in order to enhance his career prospects in India. The Tribunal is not satisfied that the purpose of these enrolments has not been to continue his stay in Australia.

21. The Tribunal is not aware of any other relevant matters. The Tribunal did not have the opportunity to explore with the applicant his claim to intend to return to India to care for his younger brother, or any other relevant matters he might have raised, at hearing.

22. On the basis of the evidence available to the Tribunal, for the reasons 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).

23. 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.

24. 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

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

    Adrienne Millbank
    Member