Rajandeep Singh (Migration)

[2020] AATA 3564

Rajandeep Singh (Migration) [2020] AATA 3564 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajandeep Singh

CASE NUMBER:  1837946

DIBP REFERENCE(S):  BCC2018/3448103

MEMBER:Amanda Upton

DATE AND TIME OF

ORAL DECISION AND REASONS:         28 May 2020 at 11:05 am (VIC time)

DATE OF WRITTEN RECORD:                25 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 25 August 2020 at 2:02pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant and student – study history – completion of two courses at same level – enrolment in courses in different subject areas cancelled for non-payment or non-commencement – value of current course to applicant’s future – no specific career plan or goal – personal, family and employment circumstances and incentives to stay or return – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), Schedule 2, cl 500.212(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 December 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 28 May 2020 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. This is application for a review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2018 to refuse to grant the applicant a student temporary class TU visa under section 65 of the Migration Act. The applicant applied for the visa on 11 September 2018. At the time of the application class TU contained two subclasses, 500 student and 590 student guardian.

4. The visa 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. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations.

5. The applicant appeared before the Tribunal first on 20 May 2020 and then today on 28 May 2020 to give evidence and present arguments. The hearing has been adjourned from the 20th to the 28th in order that the applicant provide confirmation of enrolment in a registered course which he has done so. The criteria for a subclass 500 student visa are set out in clause 500 of schedule 2 to the regulations. The primary criteria in clause 500 212(a) must be satisfied by the applicant.

6. The issue in the present case is whether the applicant is a genuine temporary entrant for entry and stay in Australia as a student. In considering whether the applicant satisfies clause 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 section 499 of the Act. It 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 immigration history including previous applications for an Australian visa or for visas to other countries; and previous travel to Australia or other countries, in addition to any other relevant information provided by the applicant or information otherwise available to the decision-maker including that which may be beneficial or unfavourable to the applicant.

7. This is not a checklist but is intended as a guide for 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.

8. The applicant in this case is an Indian male who first arrived on Australia on 6 November 2014.  He has travelled back to his home country twice since arrival both for a period of approximately a month each time.  In this time, he has also travelled to Thailand very briefly as a stopover for ten hours and Indonesia on holiday.  Prior to arriving in Australia, the applicant had completed only his secondary schooling in India.

9. Since arrival he has completed a Diploma of business, Diploma of Leadership and Management and an English course.  He was enrolled in two Diplomas of business studies and those enrolments were cancelled, one due to non-payment of fees and the other due to non-commencement of studies; he was enrolled in a Bachelor of Business and his enrolment was cancelled due to non-commencement of studies; he was enrolled in a Certificate III in Commercial Cookery, cancelled due to non-payment of fees; he was enrolled in Certificate IV in Commercial Cookery, cancelled due to non-commencement of studies; he was enrolled in a Diploma of Hospitality Management, cancelled due to non-commencement of studies.

10. He is now studying an Advanced Diploma of Leadership and Management and proposes to enrol in a graduate Diploma of Telecommunications and Strategic Management taking his stay in Australia to a period of seven years.  He noted in his section 359 response that he was would then further enrol in a Bachelor of Business but has indicated to the Tribunal during the hearing that he would go back to India to complete that.

11. The applicant has provided a response to the section 359 request, the document authored by him.  He has also provided an enrolment verification letter from his education provider, provided subsequent to the first hearing date on 20 May 2020.  The Tribunal is satisfied that the applicant is currently enrolled in a registered course of a study.

12. The Tribunal has had regard to the applicant’s circumstances in India as follows: he states the courses in India are not designed towards management and the only option for him to study would be to do an MBA with a minimum enrolment requirement of a bachelor degree which he does not have.  He has immediate family in India and keeps in contact with them via the internet every few days.  He has no financial ties and has been home twice since arrival.

13. The applicant has worked in Australia since 2015 currently employed as a sales representative earning an annual salary of approximately $40,000.  The Tribunal notes he is currently not working in that role due to the COVID pandemic and he is unsure whether he will return as the position of the business is potentially unsure.

14. The applicant raises no concerns about military service of civil and political unrest in his home country.  The Tribunal accepts that the family has family ties to his home country but does not consider that these in and of themselves constitute an incentive for him to return particularly considering that he has only returned to India twice since arrival.

15. The Tribunal is unable to accept the applicant’s assertion as to the lack of study opportunity in India, it is a claim unsupported by material.  The Tribunal considers that the applicant has a strong economic incentive to remain in Australia given his work history and lack of financial ties to his home country although does have regard to the fact of the current circumstances being a little uncertain as to what his employment status might be in the future.

16. With respect to his potential circumstances in Australia: he has no family with him in Australia; the courses he has undertaken, he has done a number of different courses - some commenced, some not; and has completed two Diplomas in a period of five a half years.  With respect to why this is the case he has told the Tribunal that he was misguided, he did not know what to do and he did not have an agent to help him. 

17. He said he was living alone and did not know what to do so just went along with what people said and with what friends were doing.  He said he made too many mistakes and got too many enrolments.  The applicant chose his course as he wishes to work in ecommerce, his goal is to work in Management and Leadership as stated in his section 359 response.

18. The Tribunal considers that the applicant does not have significant family or social ties that constitute an incentive to remain in Australia.  The Tribunal considers that the number of enrolments in different courses of different subjects is an indication that the visa program is being used to maintain residency in Australia.

19. The Tribunal does not accept the applicant’s explanation as to why he has enrolled in so many courses.  The Tribunal considers that both the fact of the enrolments and the explanation given by the applicant that he was misguided is an indication that he has no plan or considered reason for studying thus the Tribunal considers that the applicant is not a genuine student.

20. The Tribunal places significant weight on the fact that the applicant has only completed two Diploma courses over a period of five and a half years and considers this to be an indication that the applicant is not a genuine student.  Whilst the Tribunal accepts that students may legitimately and genuinely change career course over time and consequently their study plan, the Tribunal is unable to find on the basis of the evidence that this is the case for this applicant.

21. With respect to the value of the course to the applicant’s future: the applicant has enrolled in a number of uncompleted studies at vocation level, all at the same level, each of a different subject matter.  The applicant provides no specific details of a career plan or career goal.  He says that after doing the Diploma he will have more chance to get a job; that he only wants to do business and continue what he started and get a job when he gets back to India.  He says the course will be helpful because he can get a job in his hometown.

22. He says his cousins are working in similar areas and they have done the same courses.  He contends that his qualification he will confidently receive a package of equivalent to AU$50,000-$60,000 a year; however, only provides information on the basis of what his cousins earn. 

23. Given the lack of information of the applicant’s career plan or goal the Tribunal is unable to conclude that the current and proposed courses are of value to the applicant’s future career or future generally.  The Tribunal is unable to accept the assertion that the applicant makes as to the expected wage as it is made without adequate foundation.  The Tribunal is not satisfied that the applicant has demonstrated the value of the prospective course to his future.

24. The Tribunal has had regard to the applicant’s immigration.  There is no evidence of other visa refusals and cancellations.  He has travelled to other countries apparently without difficulty.  This is a matter that miitates in the applicant’s favour.  There is no further evidence or relevant matters that have been raised either beneficial or unfavourable to the applicant to consider.

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 clause 500.212(a). Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by clause 500.212.

26. Given the above findings the Tribunal finds that the criteria for the grant of subclass 500 student visa are not met.  The applicant does not claim to meet the criteria for a subclass 590 guardian visa.  Accordingly, the decision under review must be affirmed and the Tribunal affirms the decision not to grant the applicant a student visa.

    DECISION

27. The Tribunal affirms the decision under review.

    Amanda Upton
    Member