Kumar (Migration)

[2023] AATA 3831

Kumar (Migration) [2023] AATA 3831 (4 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurdeep Kumar

REPRESENTATIVE:  Mrs Yojana Pareek (MARN: 1575202)

CASE NUMBER:  2204365

HOME AFFAIRS REFERENCE(S):          BCC2021/206749

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         4 October 2023 at 12:04 pm (WA time)

DATE OF WRITTEN RECORD:                17 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 October 2023 at 1:04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – Ministerial Direction Number 69 – PRISMS record – study gap – non-commencement of studies – unsatisfactory course progress – non-payment of fees – regression in level of study – unrelated field of study – financial difficulty – health issues – conduct of the migration agent – 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 Home Affairs on 9 March 2022 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 4 October 2023 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. Mr Gurdeep Kumar, on 5 February 2021 you applied for a further Student (Temporary) (Class TU) visa. The decision maker from that department, the delegate, refused that visa application on 9 March 2022. You then applied to this Tribunal for that decision to be reviewed within the required timeframe. Your application was refused because the delegate decided you did not satisfy the requirements of Clause 500.212(a) of Schedule 2 to the Migration Regulations. And I do not need to go into the detail as to the reasons other than to say that I have read the decision and I am aware you have also read and understood the decision and I am aware that the delegate did not accept that you were a genuine temporary entrant to stay and study as a student.

4. Now, in making a decision about your application, I am required to consider everything that both yourself and your representative have provided to both the department and the Tribunal.  As well as the evidence that you have provided to the Tribunal at the hearing held on 28 August 2023.  And the further evidence that was provided to the Tribunal as the Tribunal provided you an ample opportunity to make further submissions and submit further documents following that hearing, in which you have submitted a submission from your registered migration agent, Ms Jojana Pareek.

5. You have also attached money transfer receipts from your father, a payslip from Mr Avind as evidence of your income, an income tax return of both your parents as evidence of regular income for them, your father’s property papers, affidavit of support from your parents, a statutory declaration from your friend, Mr Avin Assane and a statutory declaration from yourself to confirm your genuine intentions to study.

6. In making a decision about your application, I also have to consider the evidence you provided at that hearing and any submissions as to why the visa should be granted.  At the start of the hearing on 28 August, I stated that I am considering your application as if I was the original decision maker and I must follow the same rules and laws and regulations that the delegate was required to follow.  However, I am not bound by that decision in any way. 

7. I invited you originally to appear before a hearing in August because I was not able to decide on what I had before me and I wanted to hear from you directly, and I believe I have given you the opportunity to give evidence and present your arguments relating to the issues in the case.  And as mentioned, a further time to make further submissions and provide further evidence in support of your application.

8. We held a hearing by telephone, and I had to consider if that was reasonable by having regard to a number of issues.  Firstly, whether you would receive a fair opportunity to give evidence and present your arguments.  And your individual circumstances such as your language and whether the hearing could be conducted fairly and effectively.  I also had to consider some other issues such as the impact of delays and costs if we could not have a hearing by telephone considering you are in a different state to Western Australia. 

9. Because English is not your first language, I ensured that we had an interpreter who was fluent in Punjabi and English, available to help us to communicate.  We could communicate in English; no issues have been raised with regard to the interpretation or the communication during the hearing and certainly no issues have been raised by yourself or your representative.

10. Prior to the hearing on 28 August, the Tribunal forwarded you a request on 23 June 2023 to provide information to satisfy two requirements.  Firstly, that you were currently enrolled in a registered course of study and secondly, that you were a genuine applicant for entry and stay as a student.  Now, at the time of that invitation on 23 June 2023, the information I had before me was that you were not enrolled in a course of study.  And during the hearing, I made you aware, under a 359AA, that I had your PRISMS record and I explained to you what that was and how it was, effectively, a record of your course enrolments and your progressions since you first arrived in Australia in 2019.  And it indicates which certificates of enrolment you had and when they were cancelled and the reason they were cancelled.

11. Now, the timing of your recent enrolment is of significant concern.  Now, you first enrolled in a course in order to study in Australia, in a Master of Technology.  And that was to commence on 12 November 2018.  However, that enrolment was cancelled in July 2019.  You then enrolled in a Master of Business Administration and was to commence on 29 July 2019, and that enrolment was cancelled on 3 October 2019, for non‑commencement of studies.  You then enrolled in another Master of Business Administration and that enrolment was cancelled on 23 March 2020 for unsatisfactory course progress.  And I do note that is about the same time that COVID restrictions came into force in various parts of Australia.

12. You then enrolled in a Master of Business Administration which had its enrolment cancelled in June 2020 for non‑payment of fees.  You then enrolled in a Graduate Certificate of Management and Learning which had enrolment cancelled in October 2021 for non‑commencement of studies.  You did not hold any other certificate of enrolment until after the Tribunal provided you an invitation to submit evidence of an enrolment.  As I said, that invitation was provided on 23 June 2023.  And you then submitted enrolment for a Certificate III in Carpentry commencing on 17 July 2023, after you were issued that invitation by the Tribunal.

13. I have significant concerns that you first came here to undertake a Master of Technology and then a Master of Business and then Business Administration, and for a significant period of time you were here without complying with the conditions of your student visa, and that is to maintain an enrolment and also progress your course.  You have now enrolled in a course that has a significantly lower Australian qualification framework rating and is totally unrelated to the original two areas for which you endeavoured to study.  And you are now applying for a visa in order to complete a Certificate III in Carpentry which would not be finalised, at this point, and from the information the Tribunal has, until 13 July 2023.  And which you also have an approved course for a Graduate Diploma of Management and Learning which would extend your stay, if that was to be granted, until July 2026 - some eight years in Australia.

14. Because you are now currently enrolled in a registered course of study, that being the Certificate III in Carpentry, which you have only recently commenced; the only determinative issue for me to determine today is whether you are a genuine applicant for entry and stay and a student. And I have to consider all of the documents and the information you were provided in making a decision about this application. And in doing so, in other words, in determining whether you are a genuine temporary entrant for a student visa, I must consider and apply not only Clause 500.212 of the Migration Regulations but also a legislative instrument called ‘Ministerial Direction Number 69’, which has a title called ‘Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications’.

15. Together these tell me to assess if you intend to genuinely stay in Australia temporarily but specifically, also if you intend to comply with the visa conditions.  They also require me to consider if you are a genuine applicant for entry and stay as a student because of any other relevant matters.  And I have no submissions to suggest that the other consideration applies here.

16. I have listed the documents that have been submitted by you to consider.  And I have also paid specific attention to your submission by your representative which was in their words but I take as written by you.  I note that it is not a statutory declaration, it is dated 1 September 2023, but it is not signed by either yourself or your registered migration agent.  That may be something your migration agent may want to make note of in the future.  But certainly, I take it as a statement from you for the purpose of this decision.

17. You stated as you first came to Australia to study in 2019 you landed in Melbourne and you enrolled in a Masters of Technology, software engineering program, and being new to Australian culture, the education system and English speaking environment you were not able to perform well in that study.  The first point I will make on that is that it is a requirement of the student visa that you have a suitable understanding of English, which is assessed.  And also a knowledge of living in the country and the course requirements for which you intend to undertake your study.  And the visa was initially granted – your first visa – because you demonstrated that was the case.  You are now arguing that it was not the case for you and that you met those struggles when you commenced your study.

18. You stated that there were many unfortunate incidents that happened with you and all the cash that you had brought from India was stolen and you had not money left even for your survival.  I have no submissions that you have a reported a theft of that money to the police.  I have no submissions or information as to how much money and I find it remarkable that you brought all of your money here in cash and in a position for it to have been stolen.

19. I have been provided none of your bank statements for that period to indicate that you had no money or that you had withdrawn that cash.  So I put little weight on that claim.  If that was in fact to be the case, I would have expected you to have lodged a police report, that money had been stolen from you, and you could have provided evidence to the Tribunal to indicate that there was a reason why you did not have the money to pay for your course enrolment.

20. You said that later you fell ill due to changed weather conditions in Melbourne.  And once again, I have no medical evidence to suggest that’s the case, so I put little weight on that claim.  You said that you struggled a lot at the beginning of your journey as an international student and that was to study a Masters of Technology, and you found it difficult and tough.  But I do note that in order to have enrolled in a Masters of Technology you would have also already held an appropriate qualification at a degree level from a university in your home country and it is not reasonable for me to accept that you had no knowledge of the course for which you intended to undertake.

21. You then thought that switching to an MBA program in Sydney might have been more appropriate.  However, you were not able to perform in that one.  And you were provided on admission, a graduate certificate of Diploma of Education and you said that you were guided by your previous education advisor, Mr Shaffat Assad, from EDP Overseas migration.  However, you have now claimed that you were unaware of the Australian immigration system.  You therefore appointed Mr Assad as your migration lawyer, and you completely relied on his advice.  I am quoting from your statement here.  You were paying tuition fees to him and you were told to do so.  But later you realised he had not paid the fees to the college, even though you had provided all the documents to him for your student visa application lodgement at least a month ago.  But he did not apply for the visa on time and he did not answer calls.  And when COVID-19 happened you felt very little fortune that your friends helped you through all of that situation and ‘One friend checked my visa and was able to know that Mr Shaffat Assad did not even lodge a student visa application’.  And with the help of your friends, you were able to lodge your visa application.

22. As stated, as you would expect from a now more reputable migration agent, I would have expected to have seen some kind of complaint lodged against that individual, if that was the case, as you have outlined, with OMARA, the Office of Migration Agent Registrations.  But I have no evidence of that.  I also have no evidence that you have contacted any other government agency, such as the fraud section of the Victorian Police, New South Wales, anywhere, to indicate that you believe you were defrauded by a registered migration agent.  Therefore, I put little weight on that claim.  You have said that you have attached the copy of emails sent to your previous migration lawyer and pictures of three years below and that you have lost 12 kilos during this period because of stress.  And I will talk about your medical condition shortly.

23. You talked about your family circumstances during and post COVID‑19 pandemic and I do note that the restrictions for the COVID‑19 pandemic lasted for approximately two years, however you have been here for significantly longer, both before and after restrictions, without having complied with your visa conditions.

24. You said that during the COVID‑19 pandemic there were so many upheavals that occurred, and you lost your work right due to closure of your father’s business.  You not only lost in income but also a lot of his wealth, even due to the crash in business and my father’s business partner committed suicide.  ‘And until that period my family was supporting’ you financially, ‘but they were not able to support me as there was not a source of income for them as well.’

25. I take it that may well have been the case, however it is still a requirement of the student visa, for which you held, and including the bridging visa that you were granted, that you maintained your health insurance for your time here in Australia.  But also that you had the financial ability to maintain your living in Australia, including enrolment in a registered course of study.  I note that none of your enrolments were cancelled for compelling or compassionate circumstances.  And therefore, I can only deduct that you did not make any of those submissions to your education providers and you did not inform the department of your financial difficulty or your health issues.

26. You talked about how your brother had recently completed his medical study and was going to be shortly admitted as a doctor, and that you were suffering from depression to the point where you were considering committing suicide.  And you said that was the worst phase of your life and you were confined in your room.  While I accept that the COVID pandemic had significant impacts on people, I have serious concerns that if your mental health was presenting such an issue, you may have gone and consulted a doctor.  And you have told me in your statement that you did not do that, and that for a significant period, you did not have paid up health insurance, and that was the reason why you did not consult a doctor.  I can only deduct from that that you did not have the financial ability to comply with a further condition of the visa for which you were granted.  Not only enrolling in the course, but also to maintain your insurance.

27. You then again talked about how you were misguided by that agent.  And while I accept that you may well have been, my concern is that, as I said, you have not reported that agent, and if you have, I have no evidence before me to suggest you have done so.  And certainly, it would be reasonable to conclude anyone in that situation who had effectively had money, to summarise, ‘embezzled’ from them, from a bogus migration agent, might have referred them to an appropriate authority.  And if you have done so, you certainly haven’t provided any evidence to the Tribunal that that has happened.

28. You talked about the gap in study and getting your admission late.  And you want to genuinely study carpentry.  This is contrary to your previous visa applications and submissions to the department in which you stated you wanted to study other courses including master’s courses.  So it is difficult to accept that you have now wanted a significant change in direction in your career.  You stated that you would have taken admission earlier if you had enough financial arrangements, but you had not had the support of your family.  In other words, I note that financial transaction, where your father transferred to you, from what you stated, $A4000, but the record indicates over $A5000.  That has only occurred after the Tribunal sent you an invitation to provide evidence to satisfy a particular requirement prior to a hearing. 

29. I note again that your enrolment and Certificate III in Commercial Carpentry only occurred on 17 July 2023.  It is acceptable to consider that had you really wanted to study carpentry, your father may well have sent you the funds some time before.  Considering you had not held a certificate of enrolment, according to my records held by the Tribunal, since 18 October 2021, some two years ago as of today.

30. You talked about why you did not seek medical treatment.  That was that your health insurance was expired and you did not have enough money to buy a new insurance policy until your father sent you that money in late July 2023.  Once again, after the Tribunal’s invitation to supply supporting information.  And that was also the reason why you couldn’t seek medical treatment.  You stated that you had certain reasons for shifting from an MBA to carpentry and that was you realised that doing your masters in Australia was not your forte and you observed your friend, Avin Assane, being in a trade profession, which is a successful career.  ‘He is earning a handsome amount of money and established his only company and really supported me through a tough time’, and I accept the statement that was submitted by him in support of your application.  You stated you were really inspired for him, for doing something meaningful and progressive in your life and that you took a very thoughtful decision of studying Certificate III in Carpentry, and you feel that is the field which you can opt as a career and possess natural motor skills.

31. You also talked about the financial support and arrangements during your stay in Australia.  However, it is difficult to put much weight on that considering it has only been a recent development in your time here. 

32. Now, in considering all of this information, as stated, I have to apply, not only Clause 500.212 but also Ministerial Direction Number 69. And I will go through some of the circumstances for which I have to show regard. Firstly, your circumstances in your home country. Is there a course of study or a similar course available in your home country? It is reasonable to conclude that you can become a carpenter back in your home country and the Tribunal has been presented no reasons for you not undertaking that study in your own country or region. I have to consider the extent of personal ties to your home country. So I accept that your family is back home and that may provide some incentive for your return home. But I also have to consider your current economic circumstances. And regardless of what you are doing for work in Australia it is fair to say that there is income earning ability for anyone, even unqualified, in Australia, is greater than what it would be likewise back in your home country. And that would therefore present a significant incentive for you not to return to your home country.

1. I have to consider your circumstances in Australia and whether they present a strong incentive for you to remain in Australia.  Well, clearly working and earning income in Australia presents a stronger incentive for you to remain here than return home. 

2. I have to consider if there is any evidence that the student visa program is being used by you to get around the intentions of the migration program.  Or if it is being used by you to maintain ongoing residence here.  This is a significant reason for the Tribunal making this decision.  The fact that you have been here for so long and you have failed to comply with the visa conditions and you have failed to maintain a course enrolment, a course progress and even your health insurance, and you did not now re‑enrol after a significant amount of time, into a much lower AQF course, being carpentry, until the Tribunal’s invitation to provide evidence of such, leads me to conclude that you are deliberately using and abusing the student visa system and the subsequent Tribunal appeals process purely to prolong your stay in Australia.

3. I have no concerns about your knowledge of living in Australia, which I have to consider.  You have been here for over five years now.  As far as your knowledge of your intended course of study is concerned, you have only recently commenced this course and you have not provided any submissions to the Tribunal as to what kind of money a carpenter might earn once you are qualified, on your return to India.  And as such, I am not satisfied you have a realistic knowledge of the course that you have now recently commenced studying and what research you have undertaken into your proposed course of study.

4. I have to consider if the current course of study is consistent with your current level of education.  Clearly, you have a bachelor’s degree and you enrolled in a master’s degree, and to do a Certificate III in Carpentry is a much lower-level course than what your current level of education is.  I have to consider if the course will assist you to obtain employment or improve employment prospects when you go home, and there have been no submissions to the Tribunal to suggest you have researched that issue.

5. I have had to consider how much money you might expect to receive at home, compared to here in Australia, after finishing your studies.  And likewise, I have no information before me that has been submitted to suggest you have an understanding of how much a carpenter might be renumerated back in your home country. 

6. I have to consider your immigration history, as I have already outlined, including previous applications for an Australian visa, and I do so in considering whether I have concerns if you will comply with the visa conditions.  And as you have not complied with the visa conditions since you have arrived in Australia and until just recently, it is not reasonable to be satisfied that you will comply with any visa conditions in the future.

7. I have to consider if there is any other relevant matters when I assess your intention to temporarily stay in Australia.  And as I have outlined, I have looked at your claims for having been effectively embezzled by a previous migration agent, the fact that you claim that your finances were stolen from you, the fact that you claim that you had health conditions that prohibited you from progressing through your studies.  And as I said, I have no police reports, I have no OMARA referrals, and I have no medical evidence to suggest that I should place significant weight on any of those claims.

8. So in making a decision about your application I have considered all of the documents, the information and oral evidence both independently and cumulatively and I find that in relation to your intention to genuinely stay in Australia temporarily, that you are not a genuine temporary entrant for the purpose of a Subclass 500 Student visa.  And I find that in relation to your intention to comply with visa conditions, that considering you have not complied with visa conditions for so many years in the past, I cannot be satisfied that you intend to comply with visa conditions in the future.  And I have no submissions to suggest that you are a genuine applicant for entry and stay as a student because of any other relevant matters.

9. Accordingly, the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student as required by Clause 500.212, and given that, finding the appropriate course of action is to affirm the application for review. Therefore, the decision is the Tribunal affirms the decision under review not to grant the applicant a Subclass 500 Student visa.

   DECISION

10. The Tribunal affirms the decision under review.

    Joseph Francis
    Member