Narinder Pal Singh (Migration)

[2018] AATA 2966

Narinder Pal Singh (Migration) [2018] AATA 2966 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narinder Pal Singh

CASE NUMBER:  1703454

DIBP REFERENCE(S):  BCC2016/2862219

MEMBER:Jennifer Cripps Watts

DATE:3 July 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 03 July 2018 at 2:17pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Not a genuine temporary entrant – Initial student visa in higher education sector – Five years holding student or related bridging visas – Prioritised work over study – No progress beyond VET courses – Changes to academic sectors – No clear career path – Decision under review affirmed

LEGISLATION

Migration Act 1958, s 65, 362A

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 7 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 29 August 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 7 February 2017.  The applicant applied for review by this Tribunal on 27 February 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 7 March 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 5 April 2018.  The applicant requested a postponement which was granted and the hearing was rescheduled 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 responded to the hearing invitation indicating he and his representative would attend the hearing.  The applicant provided the Tribunal with documentary information in support of his application prior to the hearing.  Prior to the hearing, the applicant provided a current COE indicating he is enrolled in a course of study at the time of this decision.  SMS hearing reminders were sent to the applicant’s mobile number on 27 March 2018 and 5 April 2018.

7. The applicant requested access to his DIAC and Tribunal files under s.362A of the Act and full access was granted. The files were sent to him electronically by the Tribunal on 20 March 2018.

8. The applicant appeared before the Tribunal on 12 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicant was assisted in relation to the review by his registered migration agent.

10. At the end of the hearing, the representative requested another week to provide information relating to the applicant’s current study.  In response, the Tribunal told the representative that it considered the applicant had already had ample time and reminded him that he had already been granted a week’s postponement.  The first hearing was postponed, at the applicant’s request from 5 to 12 April 2018.  He was told that a further request was not considered reasonable in the circumstances.  However, the Tribunal, notwithstanding this view, granted the extension to 19 April 2018.  Additional documents were provided including:

    a.Written submissions dated 19 April 2018

    b.An email from the Apex College, dated (Thursday) 19 April 2018, stating that they cannot provide the applicant’s interim record because the Manager, due to an emergency, was not available that day

    c.Another email from Apex College dated 20 April 2018, attaching a copy of an Interim Record of Results in the applicant’s name, for the enrolment period 11 July 2016 to 8 July 2018 in an Advanced Diploma of Hospitality Management

    d.Letter from SGL Charitable Hospital in Punjab, dated 9 May 2017, indicating that Ms Manjeet Kaur, has been working as a Staff Nurse there since 2 October 2014

11. The additional documents and the contents of them, together with all other relevant facts and matters, including documentary and oral evidence, have been considered when making a decision.

12. For the following reasons, the Tribunal, having considered all relevant facts and matters, has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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 meets what is commonly referred to as the genuine temporary entrant criteria (“GTE”), that is, whether he 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)

14. 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?

15. 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.

16. 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.

    Background

17. The applicant is a 29 year old citizen of India.  He has declared no marriages or children in his application and says his parents and two siblings live in the Punjab region of India.  The applicant first arrived onshore holding a subclass 573 student visa on 17 June 2013.

18. The applicant has been residing in Australia since June 2013, for five years, holding student or related bridging visas.  He has not returned to his home country or departed Australia since arriving.  He said he tried to go back but he did not get a visa, but did not provide any evidence of having tried or being refused a visa.  The applicant has had some academic success in VET level courses he has studied but has not progressed to higher education.  He was granted his initial student visa in the higher education sector.

19. A number of matters are included in the delegate’s decision, a copy of which was provided to the Tribunal.  The applicant was granted his first student visa to study a Bachelor of Information Technology at Macquarie University.  After arriving onshore in 2013 holding a subclass 573 student visa that ceased on 30 August 2016, he did not commence this course and his enrolment was cancelled.  The applicant was therefore in breach of visa condition 8516 which requires that a subclass 573 student visa holder, the applicant in this case, “…must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.”  He was also in breach of condition 8202 which required that he must be enrolled and maintain enrolment in a full-time course of study. 

20. The applicant was reported by his education provider, in 2016.  The delegate quotes the provider:   “Student is not attending classes, nor paying fee and not appearing for exams.  He is in serious breach of his visa conditions … not responding to phone calls or other forms of communication.  Called him several times and also via his friends but student just disconnects the call”.  It is concern to the Tribunal that when the applicant was asked if he was working during this period, he said he was.  The view formed is that he prioritised working over studying while he was residing in Australia holding a student visa. 

21. The Tribunal’s view is that the applicant was in serious breach of his student visa conditions, over an extended period of time, relying on the above information.  The applicant has sought to explain the reasons why he did not study, including that he suffered stress and financial hardship due to his father’s ill health.  The Tribunal has considered his evidence, but it does not alter the fact that he was in serious breach of his student visa conditions and that he did not engage with the Department to regularise his visa status.

22. The applicant’s representative provided written submissions and the applicant himself provided written evidence, in a document entitled, “Reason for course gap and factors preventing you from maintaining your studies”.  The submissions and information in them have been considered.  The applicant says:

    a.That he was guided by an agent in India to study IT, but after he came in 2013 to study a Bachelor of Information Technology he realised that it was not his “cup of tea”, he didn’t want to fail, so decided instead to enrol in a Diploma of Management at SIBT.

    b.He had no friends at the education provider where he was studying the Diploma which led to “high stress levels”, so he switched to a different provider, Apex Institute and the Diploma of Management at SIBT was cancelled.

    c.He completed the Diploma of Management and also an Advanced Diploma of Management at Apex and then decided he wanted to pursue a career in hospitality and return to his home country to work for a major hotel chain.

    d.His parents were ill in early January 2016 and he stopped studying because his father could not support him financially or help pay his course fees, due to expensive medical costs in India, and in May 2016 Apex “…cancelled my CoE in May 2016 due to lack of attendance and non payment of fee” for the   Advanced Diploma of Management (Human Resources) enrolment.

    e.His father is now, at the time of this decision, in a better financial position and able to pay the applicant’s course fees.

    f.The problems he was having resulted in the cancellation of two Advanced Diploma course enrolments.

    g.He has completed a Diploma of Management (June 2014) and an Advanced Diploma of Management (January 2015) from the Apex Institute in Parramatta.

23. The applicant gave oral evidence at the hearing confirming these matters that he had included in his written statement.  His evidence has been considered.  It is, for the most part, a fairly factual account of his less than impressive academic history and record of cancellations and course gaps.  It is accepted that the applicant has been awarded a Diploma and Advanced Diploma in 2014 and 2015 and that he is currently progressing satisfactorily in his Advanced Diploma of Hospitality Management.  He says he is now planning to use his VET level study as a pathway to higher education.  The applicant has provided the Tribunal with a COE, Bachelor of Business, commencing 27 August 2018 and finishing in August 2012.  However, he said at the hearing that he has to redo five subjects of his current Advanced Diploma, but could not tell the Tribunal what the subjects are, despite being asked.  The applicant said that the college didn’t tell him which five subjects he failed, just that he had failed five subjects.  The applicant gave confused and internally inconsistent evidence about this matter and the Tribunal is not satisfied he will complete the Advanced Diploma within the timeframe indicated on the COE he provided, that is, by 8 July 2018 (the date in the letter provided by the education provider on 19 March 2018).  He requested more time to provide additional information about his results, time was granted, but the applicant did not provide the information about what subjects he has failed and needs to redo.  In any event, the Tribunal is not satisfied that the interim academic transcript, when considered together with the applicant’s oral evidence, is reliable as to what subjects he still needs to complete to be awarded the Advanced Diploma of Hospitality Management in July 2018.

24. The Tribunal has had regard to the applicant’s propensity to enrol in and cancel or have cancelled courses in the higher education sector and his non-compliance with his subclass 573 visa conditions.  He is yet to complete or make progress in a higher education course.  The applicant first entered Australia as a student in 2013 intending to study at Bachelor degree level and, at the time of this decision, he has still not commenced a Bachelor degree, but has provided a COE that indicates he intends to commence one in August 2018.  If the visa is granted and the applicant does finish the Bachelor course he has provided evidence of enrolment for, this will take his total time onshore as a student through to 2021, more than eight years. 

25. The Tribunal considers, in this applicant’s circumstances, that eight years is an excessive amount of time to achieve success at Bachelor degree level.  It is accepted that he intended to study a Bachelor of Information Technology in 2013 but did not like Information Technology.  However, even though it was his intention in 2013 to study at the higher education level, he has not made any genuine attempt to do so in the view of the Tribunal and he has continued to maintain residence in Australia by enrolling in a series of low cost VET courses, with gaps in his study and non-compliance with his student visa conditions, for more than five years. 

26. The Tribunal has evidence before it that the applicant depends on his parents for financial support.  The Tribunal accepts this is the case.  However, he has provided little additional evidence that would satisfy the Tribunal that he has maintained significant personal economic and personal ties to his home country. 

27. The applicant has been onshore for five years without having departed.  He came to Australia at the age of 24 and has now lived for about half his adult life outside his home country.  The Tribunal is not satisfied that he has economic and social ties to his home country that would serve as an incentive for him to return there.  Given the amount of time the applicant has spent onshore, without departing at all since he arrived in 2013, the Tribunal’s view is that his ties to Australia are strengthening while his ties to his home country are diminishing.

28. The Tribunal has considered all relevant facts and matters and has formed a strong view that the applicant’s enrolments are for the primary purpose of maintaining residence in Australia.  He has not, in nearly five years, progressed beyond relatively short and inexpensive VET courses and has had changes to academic sectors.  He has not persuaded the Tribunal that he has a clear career path or that he genuinely intends to depart Australia once he finishes studying, which at the time of this decision, will not be until at least 2021 if he enrols in and completes the Bachelor degree that he provided a COE for.

29. The applicant has a poor academic record in terms of having maintained or re-entered the higher education sector, which was the primary purpose of his coming to Australia to study.

30. The Tribunal is not satisfied that he has demonstrated that he has considered or looked into study in India, his home country.  It has been submitted that the applicant has a brother and sister who have undertaken study in nursing in India and that the applicant’s father is an educated man who works for the Indian Railway and who gained his Mechanical Engineering qualifications there as well.  The Tribunal does not consider it to be reasonable, in the circumstances, that the applicant looked into or considered studying in his home country, particularly given the financial stress he says he has suffered maintaining residence in Australia. 

31. The applicant has not convinced the Tribunal that his enrolment in a Bachelor of Business will add value to his future.  His future career goal is unformed and vague, other than to say he wants to pursue a career in hospitality.  He said at the hearing that he is intending to gain relevant work experience in a hospitality job in a restaurant, but at the time of this decision, the applicant has not provided evidence of having obtained relevant work experience in the hospitality field.  He said he has been working for a carwash company, Thor Mobile Car or Truck Wash.

32. 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).

    Does the applicant intend to comply with visa conditions?

33. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

1. Based on his past enrolment history, the Tribunal holds significant concerns that the applicant will not actually commence the Bachelor of Business that he has provided a COE for at Central College on 27 August 2018 or, if he does, that it will not be cancelled.

2. He has enrolled in and cancelled or had cancelled three previous Bachelor Degrees from 2013 to 2016.  Although the applicant has provided reasons why the degree courses were cancelled, the Tribunal, after three previous cancellations cannot be satisfied, on the balance of probability, that the applicant will commence a fourth in 2018 and finish it.  His claim to be intending to do so and that he feels confident that he can do a Bachelor degree, notwithstanding that he has provided a COE, is not considered to be credible in his circumstances.

3. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

4. The Tribunal is not persuaded, on the evidence and for the reasons stated, that the applicant will comply with condition 8202 and, on that basis, is not satisfied that the applicant meets cl.500.212(b).

5. 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.

6. 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

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

   Jennifer Cripps Watts
   Member