Sahota (Migration)

[2017] AATA 1315

Sahota (Migration) [2017] AATA 1315 (7 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Atinder Pal Singh Sahota

CASE NUMBER:  1612264

DIBP REFERENCE(S):  BCC2016/1729348

MEMBER:Wendy Banfield

DATE:7 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 August 2017 at 6:42pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 – Genuine temporary entrant – Visa granted for higher education course – Enrolled in vocational course

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2, cl 572.223

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 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 to the Department of Immigration for the visa on 13 May 2016. The delegate decided to refuse to grant the visa on 27 July 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations. After considering the applicant’s circumstances the delegate was not satisfied the applicant intends genuinely to stay temporarily in Australia. The applicant’s potential circumstances in Australia and his current studies were considered and it was found the applicant had not demonstrated how his plans in Australia will improve his future employment prospects in his home country.

4. The applicant appeared before the Tribunal on 19 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   The hearing

6. The applicant first came to Australia in March 2013 to study Business Management at James Cook University. He said he studied for 2 to 3 months but found it very hard. He also found it hard to settle down and for that reason; he decided to change direction in his studies. The applicant said he wanted to study at a lower level and possibly progress to a degree in Business Management.

7. The applicant confirmed he had enrolled in a Diploma of Advanced Leadership and Management at New England College and claimed he intended to progress to a Bachelor of Business Management after that. Regarding the benefit in future, the applicant said he will have good job opportunities when he returns to India.  The Tribunal asked the applicant why he studied automotive courses. He said he actually wants to study Management but thought it better to start at a lower level. He repeated that he wants to go on to a Bachelor degree.

8. The applicant said he is currently working at a fruit and vegetable market and lives in Brisbane with an uncle. For financial support, the applicant said he relies on his parents who send him money. He has parents, a brother and grandmother in India. The applicant has not returned to India since he came to Australia in 2013.

9. The applicant declared he has been studying continually and his current course commenced in November 2016. He said he is taking six subjects but could not remember what they are. The applicant clarified that since the visa is pending, he has not been going to college. The applicant claimed he had done one part of the course but then deferred it. The applicant said that when his student visa ceased in October 2016, he had not understood what he needed to do. The applicant said there is nothing preventing him returning to India, however, he wanted to finish the current course and then decide whether to study further or leave Australia and return to his own country. However, he reiterated that he came to Australia with the intention of studying a Bachelor degree.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

12. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that 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)     …

13. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

14. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

15. The Tribunal considered the applicant’s circumstances in India, his potential circumstances in Australia, his immigration history and other relevant information in making its decision. The applicant came to Australia on 2 March 2013 to study a Bachelor of Business but after taking his foundation course at a private college, he switched from a Bachelor degree to a lower level of education, completing a Certificate IV in Business and Certificate and Diploma courses in Automotive Technology. The applicant has enrolled a number of times in Business courses that were cancelled and claims he still plans to go on to a Bachelor of Business. In his statement to the Department dated 18 May 2016, the applicant declared he is more inclined towards the automotive field but decided to study Business as he wants to open his own business in future.

16. The applicant gave evidence at the hearing that he wants to complete his current course of study and will then decide whether to further his education in Australia or return to India. The Tribunal found the applicant to be vague about his future plans during the hearing, and he was unable to give any details about the subjects he will be taking in the Advanced Diploma of Leadership and Management that he is enrolled in now. In addition, he said that since his visa is pending, he has put his studies on hold after completing one part of the course.

17. The applicant does not appear to have any practical experience working in the automotive industry and told the Tribunal he has a job working in a fruit market. The Tribunal does not accept he will be in a position to commence and operate an automotive business without any practical experience in the field. In addition, he has already completed three courses in Automotive Technology (Certificate III, IV and Diploma) as well as a Diploma of Leadership and Management which given his declared ambition, will be an advantage to him in future. The Tribunal does not accept that if he is not granted a further visa, his efforts so far will be wasted. This is because prior to coming to Australia, the applicant had completed high school but did not have any post-secondary qualifications. While the applicant came to Australia in March 2013 to study a Bachelor of Business, he has not advanced beyond a Diploma level of education in 4 years.

18. The applicant stated there is nothing preventing him from returning to India and in his written statement of 18 May 2016, he said he had greater ties to India than Australia because of his family and friends there. However, the Tribunal notes the applicant has not returned to his own country since he arrived in 2013, and he would consider extending his stay beyond the completion of his current course. The applicant has not demonstrated a clear career pathway or shown sufficiently how the courses he is taking will improve his prospects in his own country. The Tribunal is not satisfied the applicant has demonstrated his ties to his own country are such that he has a greater incentive to return to India.

19. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

20. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Wendy Banfield
    Member