Sanjeev (Migration)

[2018] AATA 2953

Sanjeev (Migration) [2018] AATA 2953 (26 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjeev

CASE NUMBER:  1702480

HOME AFFAIRS REFERENCE(S):           BCC2016/2986965

MEMBER:Jennifer Cripps Watts

DATE:26 June 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 26 June 2018 at 12:35pm

CATCHWORDS
Migration– Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa  – Genuine applicant for entry and stay as a student  – Applicant breached visa condition 8516– Credibility concerns – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 2 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 8 September 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 2 February 2017.  The applicant applied for review by the Tribunal on 13 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 6 April 2018, the Tribunal sent the applicant a written invitation to attend his hearing scheduled on 24 May 2018.  There had been an earlier hearing scheduled in March and invitation sent out.  However, the previous member to whom the matter was constituted was not available, so a second hearing was scheduled.  Around the time the invitation to the first hearing was sent, in February 2018, the applicant requested a postponement, which was granted, in the circumstances.    

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 would attend the hearing and provided some documents for the Tribunal to consider.  The applicant appeared before the Tribunal on 24 May 2018 to give evidence and present arguments.  

7. The applicant was assisted in relation to the review by their registered migration agent, Mr Adam Khaze, Migration Agent Registration Number 0960138.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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 applicant for entry and stay as a student.

   Genuine applicant for entry and stay as a student (cl.500.212)

10. 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?

11. 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.

12. 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.

13. The Tribunal has had regard to all relevant facts and matters, including from the documents provided by the applicant and the oral evidence he gave at the hearing.

    Background

14. The applicant is a 31 year old citizen of India.  He first arrived in Australia in February 2014 holding a subclass 573 temporary student visa to study at the higher education level – the visa was valid to 30 September 2016.  He applied for a second student visa that was refused and is the subject of this review.  He said at the hearing that twice his wife and son have been refused dependant student visas.  Since 2014, the applicant has departed Australia four times.

15. During the period of the currency of his previous student visa, from early 2014 to September 2016, the applicant travelled offshore once, from November 2015 to January 2016.  He has made three trips back to India since his second student visa application was unsuccessful, twice in 2017 and once in 2018.

16. The applicant, when he arrived in 2014 holding a subclass 573 student visa, was enrolled in English and a Master of Business Administration up to mid-2016 at the University of Western Sydney.  He has provided evidence including that:

    a.He completed the English course in 2014 and that the MBA was cancelled on 9 September 2014, about six months after he arrived;

    b.then transferred to the Kinggdom Institute in Perth and completed a Certificate IV in Business in August 2015 (a subclass 572 level course);

    c.he was released from the Diploma of Management from Kinggdom College in 2015;

    d.his attendance rate has

    e.he did not inform the Department of his change from a 573 to a 572 course because, he said, he was not aware of this condition; and

    f.that he is currently enrolled in another two Masters courses.

17. Notwithstanding that the applicant has provided evidence of satisfactory attendance in some of his courses and also satisfactory results, overall the applicant’s study history in Australia, in the view of the Tribunal, is unimpressive. In addition, he was for a significant time not compliant with condition 8516 on his initial 573 visa, that is, that he continue study at the higher education level - “…continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa”: condition 8516 of Schedule 2 to the Regulations.

18. The applicant provided evidence to the Tribunal that he was enrolled in a Masters of Business Administration at the Holmes Institute from 16 July 2018 to 31 December 2018, but said at the hearing he was in India (in June) and stressed and that he requested deferment.  He provided evidence of having been evaluated by a medical professional in India in 2017. 

19. He returned to Australia after his mid-2017 trip to India, in August 2017, and gave evidence at the hearing that the next available enrolment date for the course he had deferred was April 2018.  He made two more trips back to India before the course started.  At the time of this decision, the applicant has provided a COE indicating he is enrolled in a Master of Professional Accounting at the Holmes Institute, which is evidenced by the COE that the applicant has provided the Tribunal that was issued on 18 April 2018.  The course finishes on 22 June 2018. 

20. In his student visa application lodged in 2016, the applicant declared his wife and child as non-accompanying family members.  He included information about his extended family, indicating his parents and siblings reside in India.

21. While the applicant was offshore, from June to August 2017, he applied for a temporary skilled visa, subclass UC-457, including as dependants his wife, born in 1988, and child, born in 2011.  He said he had previously applied to have them added to his student visa, but this was refused. 

22. The applicant said that the position he has applied for that is the subject of the 457 visa application is as a restaurant manager, working in Brisbane for Amars Restaurant.  He said at the hearing that even if he is granted the 457 visa, he intends to continue studying.  The course he has provided evidence of being enrolled in at the time of this decision is in Sydney, the job is in Brisbane.  The applicant has provided no evidence that he intends to transfer his course to a provider in Brisbane if granted a student visa or even if he is not granted a student visa, but is granted a 457 visa.  It is reasonable to think he may have made tentative arrangements to study in Brisbane if that is what he genuinely intends to do.

23. The applicant has provided documentary evidence of his study history and proposed study, including COE’s for past current and future enrolment, a request for deferment in 2015, letter of release from the Kinggdom Institute of Management dated 16/09/2015.  He has provided documentary evidence that he was awarded Bachelor of Technology in 2010, in India.

24. The applicant held a subclass 573 higher education visa from 2014 to 2016.  He changed from higher level study to a VET course that would be the subject of a subclass 572 visa.  He did not inform the Department of this change as he was required to do as a condition of the 573 visa.  The applicant held a Bachelor degree awarded in India and the Tribunal does not consider as reasonable that he would not be able to effectively study at this or a higher level in Australia.  He studied English and then dropped down to lower level and lower cost VET level study, which the Tribunal considers to be academically regressive.

25. The applicant has provided written submissions and made oral representations at the hearing addressing his non-compliance with condition 8516 of his first student visa because he did not continue to study at the higher education level for which the visa was granted.  He says that he was unaware that he needed to advise the Department of his change in study level when he changed from a higher education course to a VET course during the currency of his first student visa (20/01/2014 to 30/09/2016 – subclass TU-573).  The applicant changed courses from the higher education sector at the University of Western Sydney to a VET level Diploma, at the Kinggdom Institute, in 2014.  It was at that time he was required to regularise his visa status as he no longer satisfied the 573 student visa primary criteria. 

26. The applicant sought and was granted deferral from his Diploma course in 2015.  Even if he really was unaware he needed to contact the Department about his visa requirements in 2014, he was clearly informed he needed to do so in the letter before the Tribunal from Kinggdom Institute dated 16/09/2015 - he did not inform the Department.  The Tribunal does not accept as credible the applicant’s claim he was unaware that he needed to contact the Department about the change to his course details – he was clearly advised in the Kinggdom letter that he needed to do so.  This affects his credibility, in the mind of the Tribunal.

27. At the hearing, both the applicant and his migration agent, Mr Khaze, alluded to there being an email from the Holmes Institute granting deferment for the July 2017 enrolment in the Master of Business Administration course.  However, no email from the Holmes Institute confirming this has been provided.  In any event, the applicant was not required to study while he held a bridging visa and gave evidence that he was suffering extreme stress and was being treated medically in India in mid-2017.  However, this also affects his credibility.  The applicant was told he was welcome to provide evidence of the deferment request and/or grant in 2017, but did not provide it.

28. The delegate refused the student visa that the applicant applied for in 2016 because they were not satisfied the applicant was a genuine applicant for entry and stay as a student.  Significant problems that were not in the applicant’s favour at the time of application were detailed in the delegate’s decision and included that:

    a.He had breached condition 8516, which requires that he continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.  Relevantly, in this matter, that the applicant maintain enrolment in a higher education sector course.  In addition, the applicant had substantial study gaps that were not satisfactorily explained or justified to the delegate.  The delegate was not satisfied, as no evidence was provided despite it being requested, that the applicant had commenced a Master of Business Administration that he was enrolled in when he was granted the subclass 573 higher education visa in 2014.  The applicant had claimed he requested a break from his studies but provided the delegate with no evidence of having done this either.  The relevant periods were from May to November 2015 and January to March 2016.

    b.The applicant had entered Australia holding a subclass 573 visa for higher study, but discontinued at that level and enrolled in a lower level VET course, which would not be the subject of the grant of a subclass 572 visa.  As noted above, he was in breach of condition 8516 that was attached to the 573 visa.  The applicant did not notify the Department of this significant change to his circumstances and claimed poor advice and ignorance, which was not accepted as a reasonable or satisfactory explanation by the delegate.

29. The Tribunal has concerns about some of the claims made in the applicant’s written statement.  In it he says that he has maintained study since his previous student visa ceased in September 2016 and that he has been a good student from then “up to date”.  The Tribunal does not, on the evidence, consider this is a credible claim.  He has provided no reliable or documentary evidence that his mid-2017 study was deferred and has done very little, if any, study during the period he refers to. 

30. The applicant said at the hearing that he has paid fees in 2018, but has provided no evidence of having paid the fees, nor has the applicant provided any corroborating or reliable evidence that he has been attending classes from 9 April 2018 up to the time of this decision.  The hearing was on 24 May 2018.  The applicant gave evidence at the hearing that he arrived back onshore on 7 April 2018 after his most recent trip to India.  On the dates provided, the applicant has obtained the COE when he was back onshore, nine days after the course commenced.  The Tribunal considers it probable that the applicant has enrolled in this course for the purpose of supporting his student visa application and not because he genuinely intends to complete the courses he has provided COE’s for, particularly if he is granted the subclass 457 visa he has applied for.

31. At the time of this decision, on the evidence before it, the Tribunal has formed the view that there is a pattern of the applicant enrolling in and not completing courses, then enrolling in similar courses later.  It is not accepted as reliable evidence that the applicant genuinely intends to study the Master of Professional Accounting, a Masters degree by coursework, from April to June 2018 or that he genuinely intends to commence the Master of Business Administration in July 2018.  There is an interim statement of results that was provided by the applicant to the delegate, dated 16 January 2017, that indicates the applicant undertook study in a Master of Professional Accounting and did seven subjects from March to July 2016.  It is accepted the applicant undertook the study.

32. Before arriving in Australia in the applicant has indicated in his visa application that he was awarded a Bachelor of Technology (Mechanical Engineering) from the Panipat Institute of Engineering and Technology in India in 2010.

33. The applicant provided written evidence to the Tribunal in the form of a statutory declaration, sworn on 26 May 2018.  The matters in it have been considered.  He gives a summary of his study history.  He says he has, from time to time suffered stress and weight loss and that these things have affected his ability to study, or continue to study.

34. The applicant, in his GTE statement provided at the time of application, states that his career goal is to add to his Bachelor of Technology awarded in India in 2010 a Masters Business degree from Australia so he could get a position as a manager in a multi-national company.  The applicant is now applying for a subclass 457 temporary skill visa to work in the office of a restaurant in Brisbane.  There is no evidence before the Tribunal or claim made that this is a multinational company or that it is a “higher” position than the one the applicant had in India before he departed in early 2014.  He has said that he previously worked as a Sales and Marketing Officer with Om Steels in India.

35. The applicant claims that even if the 457 visa is granted to him and his wife and son, he intends to continue studying to finish his Master of Business Administration in December 2018.  He is currently enrolled and has prospective enrolment in the two Masters courses in 2018 with the Holmes Institute in Melbourne.  The applicant was asked at the hearing what he intended to do about his study, given that the job he was hoping to start if the 457 visa is granted is in Brisbane.  The applicant said that Holmes has a campus in Brisbane and he intends to transfer.  No evidence was provided giving any details or confirmation that the course is available in Brisbane and whether the applicant has made inquiries about transferring there. 

1. The applicant’s representative was invited to make oral submissions at the end of the hearing.  In essence, he submitted that the 457 visa the applicant has applied for is not on the list for permanent residency.  He said that the applicant has had problems in the past and gaps in study do not necessarily indicate the applicant is not a genuine student.  The Tribunal has considered the submissions against the evidence.

2. Having considered all relevant facts and matters, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student.  It is accepted that the 457 visa the applicant has applied for, which is the subject of a nomination which must be found valid if he is to be granted the 457 visa, is not a permanent residency visa.  Nonetheless, the Tribunal is not convinced that if the applicant is granted the 457 visa he will continue to study as he claims.  The view the Tribunal has formed is that the applicant is pursuing a visa outcome where he can have his wife and child live with him in Australia.  He has not, in the view of the Tribunal, made satisfactory progress in his study.  The applicant could have by now completed such study as would have equipped him to return to his home country to meet his stated career goal.  He has not, in the view of the Tribunal, applied himself in a manner commensurate with that of a genuine temporary entrant who is primarily focused on succeeding in his studies and returning to his home country to put his qualifications and any work experience to good use.

3. The applicant has submitted the Masters degree is very important to him and he needs to finish it so he can get a good job with a good salary in his home country.  In mid-2017, the applicant travelled offshore, to India, and applied for a 457 skilled visa.  He deferred his studies.  The Tribunal’s view is that he has prioritised applying for a work visa over continuing his study. 

4. The applicant’s family lives in India, including his wife and child.  He has made applications for them to join him in Australia.  He has not demonstrated, to the satisfaction of the Tribunal, that the ties he has to his home country are stronger than his desire to live and work in Australia.

5. The applicant has not satisfied the Tribunal that he:

   a.Made any inquiries or genuinely looked into studying in his home country.

   b.Has provided evidence that he has stronger economic ties to his home country than he does to Australia, where he studies and works.

   c.Has provided evidence of how the course or courses he has studied, and claims to be currently studying or intending to study in the future, will enhance his employment prospects in his home country and what those employment prospects in his home country are.

   d.Has provided evidence that his remuneration prospects will be greatly enhanced as between what he may expect to earn in Australia and what he may expect to earn in India.

   e.Has provided any updated financial evidence since the time of application to indicate that he still has the funds available, for which evidence was provided, at the time of this decision.

6. Whilst it is not unreasonable for someone who has a student visa in Australia to aspire to gain relevant work experience following completion of their study, this is not what the applicant in this matter is proposing.  He is pursuing an outcome in his student visa matter, before he has finished his study, whilst at the same time pursuing an outcome in his 457 visa matter which would enable him, if the visa is granted, to work full time without any requirement that he continues to study.  The Tribunal has some concerns about the applicant’s credibility with regard to certain claims he has made and that are detailed above, and does not accept the claim that he intends to continue to study if he is granted a 457 visa as credible in his circumstances. 

7. 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 cl.500.212(a).

8. 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.

9. 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

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

    Jennifer Cripps Watts
    Member