Singh (Migration) [2020] AATA 2078 (30 June 2020)
DECISION RECORD
| DIVISION: | Migration & Refugee Division | |
| APPLICANT: | Mr Gurinder Pal Singh | |
| CASE NUMBER: | 1837547 | |
| HOME AFFAIRS REFERENCE: | BCC2015/1021513 | |
| MEMBER: | Dr Jason Harkess | |
| DATE: | 30 June 2020 | |
| PLACE OF DECISION: | Melbourne | |
| DECISION: | The Tribunal affirms the decision not to grant the Applicant a student visa | |
Statement made on 30 June 2020 at 5:20pm
CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Federal Circuit Court remittal –genuine temporary entrant criterion not met – enrolment criterion – application of Direction No. 53 – principles in Kumar conflict with ruling of Judge Riley– Tribunal to give Kumar precedence– reside in Australia continuously for the last decade– economic circumstances– changed his career plans frequently– series of short, inexpensive courses– maintain ongoing residence– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 360, 368, 499
Migration Regulations 1994, Schedule 2, cls 572.222, 572.223, 573.223
Education Services for Overseas Students Act 2000
CASES
Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16
Singh v Minister for Immigration [2018] FCCA 3423
STATEMENT OF DECISION AND REASONS
INTRODUCTION AND OVERVIEW
Student Visa Refusal – Application for Review
The Applicant is a citizen of India and is 30 years of age. He seeks review of a decision made by a delegate of the Minister for Immigration (‘the delegate’) refusing to grant him a student visa.
If granted, a student visa permits a non-Australian citizen to enter and remain in Australia to study full-time on a temporary basis.
Type of Visa
The specific type of visa the Applicant applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) visa. Such visas are able to be issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).
At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted depends upon a number of considerations, including:
(a)the type of course in relation to which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclasses 570 to 575);
(b)for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclasses 573 and 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575);
(c)whether the applicant has the support of the relevant Minister (Subclass 576); or
(d)whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
The Regulations, insofar as they pertain to student visas, have been amended since the Applicant lodged his visa application. Applications for Subclass 570 to 580 visas are now no longer able to be made because they have been replaced by Subclass 500 visas. However, for the purposes of the present review application, the Tribunal…
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CaseChat Overview and Summary
This matter concerned an application for review of a decision not to grant the Applicant a student visa. The Applicant had applied for a Subclass 572 Vocational Education and Training Sector visa. The Tribunal was required to determine whether the Applicant met the genuine temporary entrant criterion and the enrolment criterion for the visa.
The Tribunal considered various factors in its assessment, including the Applicant's educational history, career plans, and length of stay in Australia. The Applicant had undertaken a series of short, inexpensive courses over a period of more than ten years, which the Tribunal found suggested an attempt to maintain ongoing residence in Australia rather than genuine study. The Tribunal also noted the Applicant's frequent changes in career plans and the lack of a clear educational or career trajectory. Furthermore, the Applicant's prolonged continuous residence in Australia on student visas, exceeding a decade, was considered strong evidence of an intention to remain in Australia.
The Tribunal applied the principles established in *Kumar v Minister for Immigration and Border Protection* [2020] FCFCA 16, which guided its approach to considering unfavourable factors. While the Applicant met the enrolment criterion, the Tribunal was not satisfied that he met the genuine temporary entrant criterion. Consequently, the Tribunal affirmed the decision not to grant the Applicant a student visa.
The Tribunal considered various factors in its assessment, including the Applicant's educational history, career plans, and length of stay in Australia. The Applicant had undertaken a series of short, inexpensive courses over a period of more than ten years, which the Tribunal found suggested an attempt to maintain ongoing residence in Australia rather than genuine study. The Tribunal also noted the Applicant's frequent changes in career plans and the lack of a clear educational or career trajectory. Furthermore, the Applicant's prolonged continuous residence in Australia on student visas, exceeding a decade, was considered strong evidence of an intention to remain in Australia.
The Tribunal applied the principles established in *Kumar v Minister for Immigration and Border Protection* [2020] FCFCA 16, which guided its approach to considering unfavourable factors. While the Applicant met the enrolment criterion, the Tribunal was not satisfied that he met the genuine temporary entrant criterion. Consequently, the Tribunal affirmed the decision not to grant the Applicant a student visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Tribunal has given consideration to whether the Graduate Certificate course is consistent with the Applicant’s current level of education. The course may be seen as representing a progression in the Applicant’s formal academic studies. Graduate Certificates sit at Level 8 on the Australian Qualifications Framework.[53] The Applicant’s previous studies, which include Diploma and Advanced Diploma courses in management, sit at Level 6 of lower. The Applicant’s proposal to undertake a Graduate Certificate in Management is consistent with his current level of education in that, once completed, it will constitute the highest level of qualification that the Applicant has obtained.[53] See generally >The Tribunal has also considered the accretion in value that this qualification will provide for the Applicant, assuming that he successfully completes it, in terms of improving his employment prospects. Other than stating to the Tribunal that he needs to ‘polish’ his skills, the Applicant has not sought to explain how the Graduate Certificate course will improve his employability. He has advanced his case for the student visa on the basis that, once he completes the Graduate Certificate, he will return to India and assume a responsibility within his family’s agricultural business. He has not identified any other career plan. The family business has one employee, according to the Applicant’s own evidence. Having regard to the VET qualifications the Applicant has already obtained in Australia, which include Diplomas in business, management and marketing, as well as building and construction, the Tribunal cannot discern the additional benefit that completion of a Graduate Certificate in Management will provide the Applicant. Indeed, in the Tribunal’s view, undertaking such a course seems somewhat excessive for the purpose the Applicant has articulated. The Applicant has produced no satisfactory evidence that demonstrates the contrary. The Tribunal finds that completion of a Graduate Certificate will be of no tangible benefit to the Applicant, in terms of obtaining or improving his employment prospects in his home country.The Applicant has otherwise not sought to explain the relevance of the Graduate Certificate in Management has to his past or proposed future employment either in India or a third country.The Tribunal has given consideration to the issue of whether the Applicant’s enrolment in this course, and his stated intention to return to India to work for the family business, represents a reasonable change to career or study pathways. Having regard to the wide range of courses the Applicant has studied for the last 10 years in Australia (which includes baking, management, business, marketing, painting and decorating, and building and construction), the Tribunal considers that the Applicant has had ample opportunity to settle on a certain education and career trajectory. In the course of the present visa application, the Applicant proposed to open a bakery or café when his case was before the delegate, to secure a job in management at a company in Amritsar when it was before the original Tribunal, and to work for the family business when he came before the Tribunal in October last year. He has changed his career plans frequently. The Tribunal finds that the Applicant has no settled career plan and that the proposed Graduate Certificate course does not reflect a reasonable change to career or study pathways.The Applicant has not produced any evidence which shows the remuneration he could expect to receive in India or in a third country, compared to Australia, using the qualifications to be gained from completing the Graduate Certificate in Management.Applicant’s Immigration HistoryThe Applicant’s immigration history in relation to Australia is cause for significant concern within the context of his present application for a temporary student visa. As the Applicant admitted in evidence, he has held two student visas since arriving in Australia in May 2009 before applying for his third in 2015. He has remained in Australia on student visas, or associated bridging visas, for the express purpose of studying as a full-time student. The Tribunal is now presented with a situation involving a non-citizen who is applying for his third student visa after more than 10 years of continuous residence in Australia as a student. With each day that passes, the Applicant’s stay in Australia becomes less temporary and more permanent. The Tribunal finds that the Applicant has resided in Australia on a continuous basis for more than 10 years and that this evidence alone strongly indicates that he is attempting to use the student visa program to maintain ongoing residence in Australia and that he is not a genuine temporary entrant.Other than the present application on review, the Tribunal is not aware of any applications for visas that the Applicant has made in Australia or other countries that have been refused.The Tribunal accepts that the Applicant has been compliant with the visa conditions of those Australian visas that he has held to date. In particular, in relation to the two student visas that were issued to him covering the period 2009 to 2015, he has always complied with those conditions that obliged him to remain enrolled, attend classes, and maintain satisfactory progress in relation to his courses. That is self-evident from the fact that he successfully completed all those VET courses in which he was enrolled during that period. He has also completed the more recent courses in marketing and building and construction while on a bridging visa awaiting the outcome of this review, when the conditions of his bridging visa imposed no study obligations at all. The Applicant has been keen to draw the Tribunal’s attention to his propensity to be a good student in this respect. Putting aside the Applicant’s failure to pursue the Bachelor of Business course, it is certainly true that the Applicant has successfully completed every course in which he has been enrolled. However, the Applicant’s argument here rests on a false premise. The more courses a person completes does not necessarily make for a more genuine student. There is no such thing as a genuine student in perpetuity. But that appears to be what the Applicant is inviting the Tribunal to accept. The Applicant’s argument seems to overlook that studying is not an end in itself. It is a transitory occupation that is undertaken by a person who wishes to gain knowledge and skills that will permit them to advance within a chosen vocation. The Applicant has, over a period of more than ten years, gone from one VET sector course to another, in many different fields, without any obvious career path. Any value that may have been found in the Applicant’s propensity to comply with his visa conditions in his early years of studying in Australia, in terms of demonstrating his genuineness as a student, has rapidly disappeared in the more recent years gone by. In the Applicant’s case, his conduct of complying with his student visa conditions over such a lengthy period is more consistent with the behaviour of person who is attempting to maintain ongoing residence in Australia, rather than of a person who claims to be a genuine student.The Tribunal has no information before it relating to the Applicant’s compliance with conditions of visas issued to the Applicant by other countries.The Tribunal does not have any material before it that suggests any of his visas have been cancelled or contemplated for cancellation by the Australian government. This is also entirely consistent with any reasonable attempt by a non-citizen to maintain ongoing residence in Australia.The Tribunal does not have any material before it that suggests any of his visas have been cancelled or contemplated for cancellation by other countries.The Tribunal has given consideration to the issue of whether the Applicant has undertaken a series of short, inexpensive courses during his time in Australia. Within the framework of Australia’s student visa program, there is a finite number of courses available to international students studying in Australia. The duration and cost of each course falls within a determinable range. In 2018, the Australian government estimated the tuition fees of VET sector courses (Certificate I to IV, Diploma and Advanced Diploma) to range from $4,000 to $22,000 per year of study.[54] Such courses tend to take between three months to two years of full-time study to complete. Higher Education sector courses (Bachelors, Masters and Doctoral degrees) were estimated to cost between $20,000 and $50,000 per year.[55] Higher Education sector courses take between one and four years of full-time study to complete. The overall range of tuition costs for all courses covered by the student visa program is therefore $4,000 to $50,000 per year, with VET sector courses tending to be cheaper than Higher Education sector courses. Course duration ranges from three months to four years, with VET sector courses tending to be shorter than their Higher Education sector counterparts. The Tribunal makes the following observations in relation to the Applicant’s studies since 2009:(a)From 2009 to 2017, the Applicant undertook a series of eight VET sector courses relating to a variety of different industries. They were all 12 months or less in duration. In this regard, they may be regarded as relatively ‘short’. While the Tribunal does not have information that reveals the exact cost of each course, based on the Tribunal’s accumulated knowledge of the hundreds of CoEs in other cases that have come before it, the Tribunal is of the view that these courses may all be characterised as relatively inexpensive.(b)The Bachelor’s degree, in which the Applicant enrolled but never started, was a significantly longer and more expensive course. However, he never started this course.(c)The Graduate Certificate in Management, which forms the basis of the current visa application on review, is a 12 month course. This, too, may be regarded as a relatively short course. While not the cheapest of VET sector courses, the Tribunal nevertheless finds that the total tuition fee of $11,500 still relatively inexpensive when compared to Higher Education sector courses.[54] See < Ibid.The Tribunal is concerned that the Applicant has undertaken a series of short, inexpensive courses over the significant period of time that he has been residing in Australia. This evidence highlights that the Applicant has managed to maintain ongoing residence in Australia, while maintaining compliance with the conditions of his student visa, on a relatively cheap basis. The pattern of moving from one cheap course to another over an eight-year period should, according to Direction No. 53, alert the Tribunal to the real possibility that the Applicant may have been attempting use the student visa program for the primary purpose of maintaining ongoing residence in Australia. That concern might have been quickly dispelled if the Applicant had demonstrated the accretion in value that the completion of each course represented in terms of improving his overall employability and career advancement. However, the courses which he completed during that time do not form a cohesive collection of qualifications supporting a particular career trajectory. Indeed, there appears very little educational unity in these qualifications at all. The Tribunal finds that the Applicant has spent more than eight years undertaking a series of short, inexpensive courses which, in turn, suggests he has been attempting to maintain ongoing residence in Australia and that he is not a genuine temporary entrant.The Tribunal has also given consideration to whether Applicant has been onshore for some time without successfully completing a qualification. In that regard, the Tribunal has considered the Applicant’s failure to make any meaningful progress towards completion of the Bachelor of Business course which he had enrolled in just prior to the hearing before the original Tribunal in May 2017. The Applicant disclosed in his ‘Explanation of Gap’ that he became ‘depressed’ after the original Tribunal affirmed the delegate’s decision and that is why he could not progress with his studies. His claims of depression are uncorroborated by any independent medical or other psychological evidence. As the Applicant stated in evidence, he did not seek any professional help. At most, the evidence discloses that the Applicant was profoundly disappointed with the original Tribunal’s decision and that is all. He managed to work and play cricket while continuing to reside in Australia for two and a half years. In light of this evidence, the Tribunal does not accept that the Applicant was depressed in the clinical sense.If the Applicant’s intentions of completing a Bachelor of Business were genuine, that certainly explains why he exercised his right to seek judicial review of the original Tribunal’s decision. Pending the outcome of that judicial review, one would have then expected him to make progress with the Bachelor’s course. But he did not do so. If his disappointment with the original Tribunal’s decision, and the stress and uncertainty surrounding the FCCA proceeding was too much for him to bear, he was always at liberty to return to India. But he did not do that either. He instead chose simply to reside in Australia without studying. The Tribunal finds that such behaviour is inconsistent with the behaviour of a genuine student visa applicant.The Tribunal has no information before it concerning the Applicant’s travels to other countries. Accordingly, it is unaware of the Applicant’s compliance with the immigration laws of any other country.Applicant’s Attempt to Circumvent Australia’s Migration Program and to Maintain Ongoing ResidenceThe Tribunal notes that the principal purpose of the Australian Government’s student visa program is to enable non-citizens, who are not permanent residents, to study in Australia.[56] The program contemplates visas being granted to persons who are both genuine students and genuine temporary entrants.[57] It is for this limited purpose that student visas are granted. They are not granted for purposes of a kind contemplated by other types of visa (e.g, working and skilled visas, and family and partner visas), many of which are designed to offer non-citizens a path to permanent residence and citizenship.[56] Direction No. 53, ‘Preamble’.[57] Ibid.The Tribunal has given consideration to the evidence before it that suggests the Applicant is attempting to use the student visa program to circumvent the intention of Australia’s migration program. That evidence, being circumstantial evidence, includes the following:(a)the Applicant’s economic circumstances in Australia relative to his economic circumstances in India (see paragraph [59] above);(b)the Applicant’s ties to Australia (see paragraph [62] above);(c)the Applicant’s lack of satisfactory knowledge in relation to his proposed course of study (see paragraph [64] above);(d)the timing of the Applicant’s enrolment in his proposed course of study (see paragraph [65] above);(e)the lack of tangible benefit for the Applicant, in terms of improving his employment prospects, resulting from completion of his proposed course of study (see paragraph [67] above);(f)the Applicant’s length of stay in Australia (see paragraph [71] above);(g)the Applicant’s propensity to be a ‘perpetual’ student (see paragraph [73] above);(h)the Applicant’s enrolment in a series of short, inexpensive courses (see paragraphs [77] and [78] above);(i)the Applicant’s time in Australia from 2017 to 2019 when he was not studying anything at all (see paragraph [79] above);(j)the Applicant’s unsatisfactory rationale for enrolling in his proposed course of study in Australia, as opposed to enrolling in a similar course in India or another country in the region (see paragraph [55] above);(k)the lack of any explanation being given by the Applicant as to the relevance of his proposed course of study to his past or proposed future employment either in India or a third country (see paragraph [68] above);(l)the Applicant’s lack of a settled career plan and that his proposed course of study does not reflect a reasonable change to career or study pathways (see paragraph [69] above);(m)the lack of any evidence produced by the Applicant that demonstrates the remuneration he could expect to receive in India or in a third country, compared to Australia, once he completes his proposed course of study (see paragraph [70] above).The evidence is overwhelming. The Tribunal finds that the Applicant is attempting to use the student visa program to circumvent the intentions of Australia’s migration program. By necessary implication, the same evidence has led the Tribunal to find that the Applicant is attempting to obtain a student visa in order to maintain ongoing residence in Australia.Other Relevant MattersThere appear to be no other matters relevant and material to the Tribunal’s determination.Overall AssessmentHaving regard to all the above considerations, the Tribunal finds that the Applicant would prefer to remain in Australia on an ongoing basis. The Tribunal does not accept the Applicant’s declared intention of genuinely wishing to remain in Australia temporarily as a student.The Tribunal notes that the material considerations that have led to the Tribunal’s ultimate determination in this case are those unfavourable factors listed in paragraphs [81](a) to [83](i) above. The Tribunal’s consideration of the factors favourable to the Applicant did not change the outcome. The Tribunal’s consideration of the further unfavourable factors, not listed in paragraphs [81](a) to [81](i), only served to buttress the case against the Applicant. According to the Full Court of the Federal Court of Australia in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, it was therefore unnecessary for the Tribunal to incorporate into its reasons explicit reference to considerations other than those referred to in paragraphs [81](a) to [81](i). However, as stated at the outset of these reasons, the Tribunal has explicitly referred to all its considerations in its reasons out of an abundance of caution to ensure it complies with the FCCA’s orders in relation to this review application.ConclusionThe Tribunal is not satisfied that the Applicant meets the criteria contained cl 572.223(1)(a) or, alternatively, the equivalent criteria applicable to Subclass 573 visas found in cl 573.223(1)(a) of Schedule 2 of the Regulations.SUMMARYAlthough the Applicant meets the enrolment criterion, he does not meet the genuine temporary entrant criterion.DECISIONThe Tribunal affirms the decision not to grant the Applicant a student visa.Dr Jason HarkessMember
Ratio Decidendi
Legal Principle Established
The Tribunal notes that the material considerations that have led to the Tribunal’s ultimate determination in this case are those unfavourable factors listed in paragraphs [81](a) to [83](i) above. The Tribunal’s consideration of the factors favourable to the Applicant did not change the outcome. The Tribunal’s consideration of the further unfavourable factors, not listed in paragraphs [81](a) to [81](i), only served to buttress the case against the Applicant. According to the Full Court of the Federal Court of Australia in Kumar v Minister for Immigration and Border Protection [2020] FCFCA 16, it was therefore unnecessary for the Tribunal to incorporate into its reasons explicit reference to considerations other than those referred to in paragraphs [81](a) to [81](i). However, as stated at the outset of these reasons, the Tribunal has explicitly referred to all its considerations in its reasons out of an abundance of caution to ensure it complies with the FCCA’s orders in relation to this review application. The Tribunal is not satisfied that the Applicant meets the criteria contained cl 572.223(1)(a) or, alternatively, the equivalent criteria applicable to Subclass 573 visas found in cl 573.223(1)(a) of Schedule 2 of the Regulations. Although the Applicant meets the enrolment criterion, he does not meet the genuine temporary entrant criterion. The Tribunal affirms the decision not to grant the Applicant a student visa.