Salh (Migration)

Salh (Migration) [2018] AATA 3765 (9 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurpreet Singh Salh
CASE NUMBER:  1710518
HOME AFFAIRS REFERENCE(S):           BCC2017/407617
MEMBER:Warren Stooke AM
DATE:9 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 09 August 2018 at 2:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – Acknowledged breach of visa conditions – No current certificate of enrolment – Lack of academic progression – VET sector courses – No proof of tuition fee payment – Infrequent visits to home country – Vague reference on potential position – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 500.211, 500.212

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 January 2017. 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.50.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not made sufficient progress in his studies, had no clear career goals and that the applicant was seeking a further student visa to prolong his stay in Australia.
The applicant appeared before the Tribunal on 8 August 2018, by telephone, to give evidence and present arguments.
The applicant also provided a written submission before the hearing that has been considered by the Tribunal.
The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.
At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 5 May 2108, a copy of which was provided to the Tribunal by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 entrant for the purposes of entry and stay as a student having resided in Australia for 10 years and is seeking further time to undertake an additional VET course.
The applicant is a 36 year old from India who first arrived in Australia on a TU Subclass 572 visa on 10 August 2010.
The applicant gave evidence that he has not returned to India since 2013, as he thought his course would have been finished in 2015, but due to illness that involved the removal of his gall bladder and subsequent convalescence for one and a half months he prevailed upon the college to allow him to complete his course. He stated that he had been bed-ridden for three months.
The applicant gave evidence that the college allowed the applicant time to submit outstanding assignments for the Diploma of Business course, but he was required to enrol in further studies relating to an Advanced Diploma in Business. The applicant expressed the view that he felt cheated and was under financial stress because he had not been able to work during this illness and fund his course studies. The applicant stated that he felt pressured and did not want to undertake the course required by the college.
The applicant confirmed to the Tribunal that he had not sought a deferment. The applicant also, gave evidence that he had not complied with his visa conditions when this was put to the applicant by the Tribunal. The applicant stated – “I do agree breach of visa conditions”.
The applicant gave evidence that he had completed the following courses:
·Certificate III in Printing and Graphic Arts (Graphic Press)
·Diploma of Multimedia
·Certificate II in Hospitality
·Certificate IV in Hospitality
·Diploma of Hospitality
The Tribunal asked the applicant to explain why he did not return to his family with the stress he claimed to be have suffered and he stated – “I am looking for my future”.
The applicant gave evidence that he has no family in Australia, but he has family in India. In this regard, the applicant has a father, who is a carpenter and his mother is engaged in home duties. He stated that he has returned to India three times in the last 10 years and his last trip to India was in 2013. He gave evidence that he had also travelled to Thailand.
The applicant gave evidence that there was no reason that would preclude him from returning to India, but his aspiration was to complete his Diploma course.
When asked by the Tribunal, if he was seeking PR, the applicant responded with a “no.”
When asked by the Tribunal, if it was his motivation to remain in Australia permanently, the applicant responded by saying – “maybe that is possible.”
The applicant gave evidence that he met a friend in Thailand in 2010 who advised him that whilst he had a Diploma of Hospitality he would need a Diploma in Business to get a good job in Thailand. As such, it was his intention to complete his Diploma of business and seek employment in Thailand.
The applicant gave evidence that he currently works as a cook in an Italian restaurant for 15 hours per week and is paid $22.00 per hour.
The applicant was asked what he had done in India before coming to Australia and he gave evidence that he completed a Bachelor’s degree in Internet Science and had worked for two years with his father’s carpentry business.
The Tribunal was given evidence by the applicant that he wanted to complete his Diploma of Business Management course before returning to India or Thailand. In this regard, he was unable to confirm any details of a specific position.
Enrolment (cl.500.211)
Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.
‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.
The applicant was asked on numerous occasions, if he had a current certificate of enrolment. Initially, the applicant purported that he did have a Certificate of Enrolment, but could not identify the school that he was attending and stated he would have to check. This comment led to further investigation by the Tribunal to ascertain if the applicant was enrolled or not. His first response was ‘probably’ and then ‘most likely’. After considerable persistence with ascertaining the truth of his status, the Tribunal was advised that he is not enrolled and has not attended school in seven months. As such, the Tribunal is satisfied that the applicant does not have a current Certificate of Enrolment.
Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
The Tribunal is satisfied, based upon the evidence, that the applicant is not a genuine applicant for entry and stay as a student for the following reasons:
·The applicant has been in Australia for 10 years and has not progressed academically beyond the VET sector and could not adequately explain why he transitioned from multimedia to cookery and thence business;
·The applicant has not maintained appropriate connection with his home country having returned to India only three times in 10 years and not since 2013;
·The applicant, whilst acknowledging a brief period of convalescence of 3 months (based upon the evidence) in 2015, has not completed his studies toward a Diploma of Business and Management, which he commenced in 2013;
·The applicant has given evidence that he has breached visa conditions [8202] by not attending studies and not applying for any deferment;
·The applicant’s statement that he requires a Diploma of Business Management to secure employment in hospitality in Thailand, having already completed Certificates in Cookery and a Diploma in Hospitality is not credible;
·The applicant does not have a current certificate of enrolment, which is a primary requirement for the granting of a subclass 500 visa.
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?
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.
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).
The applicant acknowledged that he had breached visa conditions in evidence by not attending his course of study post his health recovery and did not apply to the institution for a deferment. Hence a breach of criteria 8202 has occurred. As such, the Tribunal is not satisfied that the applicant is likely to comply with visa conditions in the future.
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Direction 69
The Tribunal has considered the applicant’s home country circumstances and is satisfied on the weight of the evidence that there are no reasons provided by the applicant that would preclude the applicant from returning to his home country.
Further, the applicant has confirmed in evidence that he has only returned to India 3 times in 10 years and the last return was in 2015. As such, the Tribunal finds that the applicant has not maintained connection with his home country and has been using the study visa system to maintain residency in Australia rather than for the purposes of study. This view is also supported by the lack of academic progression.
The applicant on the weight of evidence has confirmed to the Tribunal that he has a discernible intention to seek permanent residency with the response to this question, being – “maybe that is possible.” This, in the Tribunal’s view is not the expected response of genuine applicant for entry and stay as a student, in Australia.
The Tribunal finds that the vague reference to securing a potential position in Thailand, without specific detail does not satisfy the Tribunal that the applicant has a genuine career status with concrete arrangements
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
Member

[2018] AATA 3765

9 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice