Rahul (Migration)

[2019] AATA 1439

Rahul (Migration) [2019] AATA 1439 (29 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Rahul

CASE NUMBER:  1728244

HOME AFFAIRS REFERENCE(S):           BCC2017/3073632

MEMBER:Peter Booth

DATE:29 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 April 2019 at 3:32pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – change of study direction – study gap – value of course – no genuine interest in study – significant ties in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 13 November 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 25 August 2017. At the time of application, Class TU contained two subclasses:

   ·Subclass 500 (Student); and

   ·Subclass 590 (Student Guardian).

3. 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.

4. 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 applicant was not a genuine temporary entrant.

5. The applicant appeared before the Tribunal on 18 April 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 temporary entrant.

8. 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?

9. 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, which is attached to this decision, 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.

10. 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.

11. The applicant gave evidence to the following effect. 

12. He said that he had read and understood the delegate’s decision dated 13 November 2017.  The Tribunal informed the applicant that it had read and would take into account the various responses he had given to the request for information pursuant to s. 359(2) of the Act.

13. The applicant was granted a Subclass 573 visa valid from 25 March 2014 to 30 August 2017.  He said that he intended to study an Advanced Diploma in Hospitality and then a Bachelor degree in Hospitality Management.  He arrived in Australia on 3 April 2014.  Since that time he has left Australia between 1 February 2015 and 28 February 2015 and November 2017 to December 2017.

14. The applicant’s immediate family in India comprises his father and two siblings.

15. The applicant said that he commenced the Diploma of Hospitality and Management in July 2018 but did not complete it.  He said he completed the first semester but failed.  He said that after that, he returned to India for some time to see his family.  He said that his enrolment was cancelled because of non-payment of fees, on 18 March 2015.  He then enrolled in a Certificate III in Light Vehicle Maintenance but did not complete it.  This was in April 2016.  When asked why he did not complete the course, he said that he found it too difficult. 

16. He then enrolled in Certificate I and III in Commercial Cookery which he completed in January 2018.  This was followed by a Certificate IV in Commercial Cookery which he completed in July 2018.  He completed a Diploma in Hospitality and Management in February 2019 and is currently enrolled in an Advanced Diploma of Hospitality and Management due to be completed in October 2019.

17. The applicant said that he had a gap in study from 10 April 2016 to December 2016.  When asked why this occurred, he said that his grandfather had passed away and that he was very attached to him.  He could not study and did not attend classes.  He said that his grandfather passed on 20 April 2016.  He suffered a heart attack, and was approximately 82 years old.  He said he did not return to India for his grandfather’s funeral because he could not “face it”.

18. When asked why he changed direction in study from hospitality management to cookery, he said that there were lots of cooks jobs in his home town.  He said that a cook would earn between $A25,000 to $A30,000 per annum.  When asked what a hospitality manager would make a year, he said between $A40,000 to $A45,000 per annum.  He said that whilst he was studying a Diploma of Hospitality Management, he thereafter intended to do a one-year course culminating in a Bachelor degree in hospitality management, if he remained in Australia.

19. The Tribunal said that it had read the applicant’s submission dated 8 March 2019 and asked if he wanted to add anything to it.  He said that he was very young when his mother passed away, about 18 years old.  When asked whether the loss of his mother was relevant to his study problems in Australia, he said that it was not.  He was asked then about his problem with depression which featured both in his submission dated 8 March 2019, and also the subject of the psychologist’s report dated 30 October 2017.  He said that he was having problems with depression from April 2016 to December 2017 due to the loss of his grandfather.  The Tribunal pointed out that the psychologist’s report did not say that he could not study only that he experienced some concentration difficulties, irritability and mildly low mood.  He was asked whether he had continued seeing the psychologist.  He said that he had seen the psychologist two or three times since, and that he last the psychologist in November 2018.

20. The applicant produced a Confirmation of Enrolment in regards to the Advanced Diploma in Hospitality Management course which disclosed that that course would be completed on 15 October 2019.

21. The applicant was asked to explain the change in patterns of his study and changing the nature of his study.  He said that it gave him options whether to work in management or cooking.

22. The applicant said that his family had assets in India comprising agricultural land, a house and a factory.  He estimated their total value to be $A1.5 million.

23. In considering whether the applicant met the genuine temporary entry criterion, the Tribunal had regard to the following factors, consistent with clause 500.212 and Ministerial Direction No. 69.  The factors were used to weight up the applicant’s circumstances as a whole, in reaching a finding about whether they satisfy the genuine temporary entrant criterion.

24. The Tribunal considered the applicant’s circumstances in his home country.  The applicant has provided evidence social, direct family, financial ties to this home country, or other economic incentives to return.  When considering the applicant’s circumstances in his home country, the Tribunal accepts that he has been able to demonstrate significant ties to act as an incentive to return to his home country at the completion of the proposed study.

25. The Tribunal has considered the applicant’s potential circumstances in Australia.  The applicant arrived in Australia on 3 April 2014 as a holder of a Class TU Subclass 573 Higher Education Sector Student visa, valid to 30 August 2017.  However, he has not completed such study.  The Tribunal places significant weight on this factor.

26. The Tribunal places weight on the value of the course to the applicant’s future, including remuneration and career prospects in the applicant’s home country.  The applicant initially intended to study a Bachelor degree in Hospitality Management in Australia. 

27. The Tribunal has also considered the applicant’s study history since that time, namely that the applicant ceased his study, and commenced study in a Certificate III in Light Vehicle Mechanical Technology, a Certificate III and IV in Commercial Cookery. 

28. Now he intends to return to hospitality management.  The Tribunal notes that this course plan is inconsistent with his study plans when he initially entered Australia.  This is not the conduct of a genuine student.

29. The Tribunal is not satisfied that the applicant has established that Bachelor level study will provide him with significant benefits in his proposed career plan, considering the cost of the study.  The Tribunal is not satisfied that the applicant has demonstrated that the proposed additional study has a realistic prospect of providing significant value to his future, beyond the qualifications he already holds.

30. The Tribunal has given regard to the applicant’s immigration history.  The change in course type and level from that originally intended is inconsistent with the applicant being a genuine student. 

31. The Tribunal has given regard to whether there is any other relevant matter.  The Tribunal accepts that the applicant had a period of interruption to his study due to the loss of his grandfather.

32. On balance, the Tribunal is not satisfied that the applicant is a genuine temporary entrant for a further stay, as full-time student.  Whilst the applicant clearly wishes to stay and continue to study in Australia, it is noted that the applicant was previously granted a visa specifically to enable the applicant to achieve that goal.  This was not pursued for any substantial time beyond the first semester.  It appears to the Tribunal that the applicant has commenced studying for the purposes of the visa application only, in order to secure a further stay in Australia rather than due to a genuine interest in this area of study. 

33. The Tribunal has considered all information provided by the applicant in support of the applicant’s application.  On balance the Tribunal is not satisfied that the information the applicant has provided regarding the applicant’s circumstances in the applicant’s home country, potential circumstances in Australia, the value of the proposed course to the applicant’s future, the applicant’s immigration history and other relevant matters are sufficient to demonstrate that the applicant is a genuine temporary entrant.

34. On the contrary, the factors indicate that the applicant appears to have enrolled in the present course for the purposes of securing a further student visa, rather than a view to a genuine interest in study and overall academic progress.  The applicant appears to be using the student visa program as a means of maintaining ongoing residence in Australia and does not have a genuine intention to stay in Australia temporarily.

35. There is no evidence before the Tribunal regarding the following factors indicated by Direction 69:

    ·economic circumstances of the applicant;

    ·any potential military service in India;

    ·political or civil unrest circumstances in India;

    ·remuneration the applicant could expect to receive in India or a third country compared with Australia;

    ·circumstances in India relative to Australia or any other country; and

    ·the applicant’s circumstances in India relative to others in that country.

36. The Tribunal considers that an applicant who is a genuine temporary entrant will have circumstances which support a genuine intention to remain in Australia temporarily, recognising the possibility that this may change over time to utilise lawful means to remain in Australia.  Given the amount of time the applicant has now spent in Australia, the Tribunal is concerned the student visa may be used primarily for maintaining ongoing residence.

37. 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).

38. Further, 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.

39. 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

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

    Peter Booth
    Member