Singh (Migration)

[2019] AATA 2090

Singh (Migration) [2019] AATA 2090 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpinder Singh

CASE NUMBER:  1806717

DIBP REFERENCE(S):  BCC2016/1127745

MEMBER:Adrienne Millbank

DATE:18 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 18 June 2019 at 4:08pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit Court remittal – genuine temporary entrant – study record – enrolments cancelled – non-attendance – breach of visa conditions – advice from agents – length of time in Australia – developed ties in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 and Border Protection 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 is a 27 year old Indian national who first arrived in Australia on 10 February 2013 on a Higher Education Student (Subclass 573) visa under the streamlined visa processing arrangement.

3. The applicant applied for the visa on 15 March 2016. The Delegate decided to refuse to grant the visa on 9 May 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).

4. A copy of the Delegate’s decision was provided to the Tribunal by the applicant.

5. In this case the application was assessed against the criteria for a Vocational Education and Training Sector (Subclass 572) visa. The Delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations. The Delegate was not satisfied, based on his immigration and education history, that the applicant was a genuine student intending genuinely to stay temporarily in Australia.

6. The Delegate noted in the decision record that since his arrival in Australia the applicant had completed only an English for Academic Purposes course and a Certificate III in Automotive Mechanical Technology; that he never commenced the Bachelor of Information Technology of Bachelor of Business studies that he enrolled in; and that he therefore appeared not to have complied with condition 8516 attached to his Subclass 573 visa. The Delegate further noted from the applicant’s Provider Registration and Student Information Management System (PRISMS) records that his enrolments had been cancelled ten times, with half the cancellations due to non-commencement of studies.

7. The Delegate placed weight on the fact that the applicant had not provided evidence of any employment ties, assets or business ties or social ties to India, and that while he had immediate family in India, he had not departed Australia since arriving on 10 February 2013. The Delegate considered the applicant’s education and immigration history indicative of someone who was utilising the student visa program to maintain ongoing residency in Australia.

8. The applicant applied for review of the Delegate’s decision. On 2 May 2017 the Delegate’s decision was affirmed by a differently constituted Tribunal. The applicant applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. On 1 March 2018 Judge Jarrett remitted the application. Judge Jarret found that the decision by the formerly constituted Tribunal was affected by jurisdictional error because the manner in which the hearing was conducted gave rise to a reasonable apprehension of bias.

9. The applicant appeared before the Tribunal on 6 June 2019 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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)     …

12. 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.

13. 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.

14. The applicant at hearing confirmed that he understood the Delegate’s decision and the significance of his education and immigration history as an issue before the Tribunal. He indicated at the outset that he wanted to explain his circumstances, and did so as follows:

    After finishing high school in India he obtained a Diploma in Computer Application at the National Institute of Computer Systems in Jalandhar city, which is about 20 minutes travel time from his family’s farm and home in a small village. He remained living in Jalandhar after his two year Diploma course, attracted by its city lifestyle, supported by his father. His father is well-off and besides farmland owns other land and a restaurant/canteen which services a university in Jalandhar. The applicant was led astray by friends in Jalandhar and spent his time partying and in other non-productive activities. He has never worked in India. He is an only child and was able to do whatever he liked.

    When the applicant came to Australia however his father required him to work to help support himself. He worked in a pizza restaurant and in Coles before losing his work rights after he became illegal for a period of around two weeks through an oversight of his agent. (The applicant’s Bridging visa A expired on 30 May 2017.) When he returns to India he expects to work with his father in some capacity. In 2018 he had the idea of developing a poultry farm on land his father owns. He has absorbed useful lessons while working at Coles in how to make profits.

    He has been badly served and advised by agents. When he first arrived in Australia his Certificate IV in Web-based Technologies course, a preliminary to his intended Bachelor of Information Technology, had already been running for two weeks and he found it impossible to catch up. He was young, 21 years old, and his English was poor, so he took advice from his provider to study English instead. He completed the English for Academic Purposes course, he thinks successfully although he never received any grade or certificate. He subsequently attended classes for a Certificate III in Automotive Mechanical Technology but he did not successfully complete this course and was not awarded a certificate. He had no real interest in becoming a car mechanic, and only enrolled in the course because his agent told him to. He found the practical coursework difficult.

    He decided that business studies might suit him better than automotive studies.  Unfortunately, by the time he developed the confidence, English ability and motivation to properly focus on a business course, his visa was refused. He didn’t attend any classes while on a Bridging visa A because he didn’t know that he was allowed to: his agent told him just to wait for the Tribunal’s decision. Since he was granted a Bridging visa E without work rights on 13 June 2017 he has continued to be financially supported by his father, and has lived in the home of extended family members where he has helped care for the children.

    Besides having been badly advised by agents, the applicant has made mistakes, including not attending classes, but is now prepared to study and wants to obtain a Diploma of Business so he has a qualification to go home with. He would feel a failure if he has to return without a qualification. He also wants to acquire skills and knowledge to improve the family’s farming and catering businesses.

15. The Tribunal advised the applicant that while it accepted that he was young when he first arrived in Australia and that he tried but struggled to cope with his studies and life in a new country at the beginning, it remained concerned that he has remained in Australia for over six years on Student and Bridging visa without successfully completing any course aside (perhaps) from a preliminary English course, and without obtaining any qualifications. The Tribunal suggested that as the applicant had enrolled in a wide range of courses, from Certificate III to degree level without any success, it appeared that he lacked the ability and/or motivation to study in Australia. The Tribunal asked the applicant why, if this was the case, he had not returned to India, rather than continuing to enrol in courses where he could not understand the coursework and/or did not attend the classes. The applicant responded that he enrolled in an automotive course because his agent told him to, and he lacked confidence and lost his way for a while, but he has decided he wants to study in the field of business. He stated that he didn’t want to disappoint his parents by returning to India without a qualification.

16. Following the procedures in s.359AA of the Act, the Tribunal advised the applicant that it had information, namely his PRISMS records, that would, subject to his comments in response, be the reason or a part of the reason for affirming the decision under review. The Tribunal advised the applicant that the information showed, as he had already acknowledged, that he had not successfully completed any courses; that he had enrolled in a variety of courses from certificate to degree levels ranging across the subject areas of information technology, car mechanics and business studies, and that most of his enrolments were cancelled for the reason of non-attendance.

17. The Tribunal advised the applicant that the information was relevant because it indicated that he might not be a genuine student who intended genuinely to stay in Australia temporarily. The Tribunal provided the applicant with a copy of his PRISMS records and advised him that he could seek an adjournment to consider his response before commenting on the information. The applicant did not seek an adjournment. He advised the Tribunal that he had already explained his circumstances, how he was poorly served by agents and made mistakes. He advised that he did not even know about a number the enrolments that appeared in his PRISMS records. He acknowledged that he has not studied since he attended classes for the Certificate III in Automotive Mechanical Technology course he was enrolled in from 1 July 2013 to 29 June 2014.

18. The applicant’s PRISMS records show that after his enrolments in the Certificate IV in Web-based Technologies, English for Academic Purposes and the Certificate III in Automotive Mechanical Technology, the applicant was enrolled in a Diploma of Website Development; a Certificate IV in Business;  a Diploma of Business (twice); a Bachelor of Information Technology; a Certificate IV in Automotive Technology (twice) a Bachelor of Business; a Diploma of Automotive Technology (twice); and an Advanced Diploma of Business (twice). The applicant advised again that he was not interested in studying auto mechanics, that he had switched his interest to business, but that he had been poorly advised and served by his agents.

19. The Tribunal pointed out to the applicant that he was enrolled in a Diploma of Business course from 28 January 2014 to 6 June 2014. The Tribunal asked the applicant why, if he had decided that he was interested in and believed himself capable of doing business studies, this enrolment was cancelled for the reason of non-attendance. The applicant stated that he had no motivation to study at that time. The Tribunal put to the applicant that he had signed declarations when he applied for his Student visa that he understood and would comply with the conditions attached to his visa. The applicant responded that all his paperwork was done by agents; that he did not receive or read any letters from the Department; and that it did not occur to him to seek or provide information through the Department’s website. He acknowledged that he understood that he was expected to study while in Australia on a Student visa, and that it was his ‘mistake’ not to attend his classes and apply himself to his studies.

20. The Tribunal asked the applicant why he could not do a business course in India, as this would be more relevant to his local area’s customer base, and local legal and financial systems. The applicant responded that such a course was available in Jalandhar, but that he could not study there because he would again be distracted by his friends and drawn into a city and partying lifestyle. He claimed that it was easier for him to concentrate on his studies in Australia, away from his friends. He argued also that Australian qualifications are held in high esteem by Indian employers, but acknowledged that he had no need or intention of applying for jobs as he would return to his father’s farm and catering businesses.

21. The applicant stated that he missed his parents and missed attending occasions like family weddings, but acknowledged that he has not returned home even for a visit since arriving in Australia on 10 February 2013. He stated that his agent told him that he did not have permission to travel. The Tribunal notes that the applicant is living with extended family members in their home in Brisbane. The Tribunal does not consider that the presence of the applicant’s parents in India is a significant incentive for him to return home.

22. The applicant confirmed that he does not have national service obligations in India, and has no other reason such as communal unrest or violence to not want to return to his home country. He confirmed that he has not entered Australia before, and has not travelled to other countries.

23. The applicant presented at hearing as articulate, confident, assertive and charming. The Tribunal is not convinced that his poor education and immigration history is in large part due to his meekly following poor advice from agents, and their bad service. The Tribunal accepts that the applicant has personally developed since his arrival in Australia as a 21 year old, but is not convinced by his claim that he is motivated, at the time of decision, after 6 years of not studying, to undertake business studies in order to apply the skills and learnings in his home country.

24. The applicant’s education and immigration history does not support his claim to be a genuine student. They indicate rather that he has used the student visa system to live in an Australian city. The Tribunal is not convinced that after living in Brisbane for six years the applicant is motivated to study with the aim of returning to the family farm and village and expanding his father’s business into poultry farming. The Tribunal in any event is not satisfied, on the evidence provided, that an Australian Diploma of Business is necessary for him to achieve such an ambition. The Tribunal notes that the applicant’s future is secured by father’s businesses, and that on the applicant’s own advice, relevant business and management courses are available to him in his own country.

25. The Tribunal accepts that the applicant’s economic circumstances in India and his potential remuneration in Australia are not a significant incentive for him not to return to India. The Tribunal notes however that the applicant has extended family members in Australia, and that he has lived here for 6 years, during which time he would have developed community ties with this country. The Tribunal notes that the applicant did not comply with the conditions of his visa when he was illegal for a period of two weeks. The Tribunal accepts that this was through an oversight of his agent, but finds the applicant’s lack of engagement with his visa conditions such as the date the visa ceased, and his lack of engagement with his studies (having not completed a qualification) to indicate that he did not seriously research his courses or familiarise himself with his course material or course providers. The Tribunal finds that the applicant has used the Student visa program to circumvent the intentions of the migration program.

26. No other relevant matters were raised by the applicant or otherwise before the Tribunal.

27. 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).

28. 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

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

    Adrienne Millbank
    Member