Singh (Migration)

[2019] AATA 1828

Singh (Migration) [2019] AATA 1828 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh

CASE NUMBER:  1724164

DIBP REFERENCE(S):  BCC2017/1557270

MEMBER:Roger Maguire

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 May 2019 at 1:43 pm (QLD time)

DATE OF WRITTEN RECORD:                5 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

Statement made on 05 June 2019 at 2:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – incentives to return home – care for mother – immigration history – non-compliance with terms of original visa – health issues – recent academic progression – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 September 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under section 65 of the Migration Act 1958 (the Act).

2. At the hearing on 15 May 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 1 May 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) as the delegate was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

5. The applicant provided the Tribunal with a copy of the delegate’s decision record dated 15 September 2017. The Tribunal is not bound by the delegate’s decision record but may have regard to it. The Tribunal also had access to the relevant file of the Department of Immigration and Border Protection.

6. The applicant appeared before the Tribunal on 15 May 2019 to give evidence and present arguments and was assisted by his registered migration agent. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

   Consideration of claims and evidence

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 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 as is required by clause 500.212(a).

   Genuine applicant for entry and stay as a student

8. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry to 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?

9. In considering whether the applicant satisfies clause 500.212(a) the Tribunal must have regard to Direction No. 69 ‘Assessing the genuine temporary entrant criterion for a student visa and student guardian visa applications’ made under section 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 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.

10. 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.

11. The Tribunal had before it the decision record. Salient points arising from it include:

    a.The applicant was granted an initial Student (Class TU) Subclass 573 visa on 20 January 2014 valid until 16 May 2017 and arrived in Australia on 28 January 2014 to study a Bachelor of Business, which he never commenced thus breaching condition 8516.

    b.The applicant subsequently enrolled in a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.

    c.The applicant had previously been enrolled in the following courses:

    (i)a Certificate IV in Business, which had been completed;

    (ii)a Diploma of Management and a Diploma of Business, which had been completed;

    (iii)a Bachelor of Business;

    (iv)an Advanced Diploma of Management;

    (v)an Advanced Diploma of Business, which had been completed.

    d.The current application for a Student (Temporary) (Class TU) Subclass 500 visa was made on 1 May 2017.

    e.Departmental records show that the applicant had not departed Australia since entering on 28 January 2014.

    f.The applicant’s brother and sister reside in Australia permanently and this provided an incentive for the applicant to remain in Australia.

    g.The applicant had maintained enrolment in short inexpensive courses in the vocational education and training sector.

12. On 13 March 2019 the applicant was sent a written invitation by the Tribunal to provide information about his entry and stay in Australia as a student.

13. In his response delivered on 27 March 2019, which the applicant declared to be complete and correct, the applicant disclosed among other things:

    a.The applicant completed the equivalent of Year 12 in 2011 prior to coming to Australia.

    b.The applicant had no work experience prior to coming to Australia.

    c.The applicant had not returned to his home country since coming to Australia but had travelled to the United Kingdom in 2012.

    d.The applicant has no pending visa applications.

    e.The applicant has had no prior cancellations or consideration of cancellation of a visa.

    f.The applicant held a current certificate of enrolment in an Advanced Diploma of Leadership and Management, which was due to expire on 12 May 2019.

    g.The applicant was studying an Advanced Diploma of Leadership and Management, which was due to be completed in May 2019.

    h.The applicant had previously completed:

    (i)a Diploma of Leadership and Management in April 2018;

    (ii)an Advanced Diploma of Business in March 2017;

    (iii)a Diploma of Management in December 2015;

    (iv)a Certificate IV in Business in May 2015;

    (v)a Diploma of Business in July 2014.

    i.The applicant had been working as a bakery production worker with Filla Bakery Pty Ltd from February 2014 to June 2018.

    j.The applicant had annual living expenses of about $18,000.

    k.The applicant’s father (whom he last saw in April 2016) and his mother (whom he last saw in March 2018) live in India. The applicant’s de facto partner whom he last saw in August 2010 also lives in India.

    l.The applicant has a brother and sister resident in Australia.

    m.The applicant maintains contact with family and school friends in India via Internet video calls and social media and is a member of the local Sikh temple and a member of a music studio.

    n.The applicant said he has no community ties in Australia.

    o.The applicant has assets in the form of property, gold and cash totalling $590,000 in India.

    p.The applicant plans to start a new business in India or Canada.

    q.The applicant has no concerns about military service or political or civil unrest in his home country.

14. The Tribunal had in its possession a copy of the applicant’s PRISMS records, which show that the applicant’s confirmation of enrolment had been cancelled on 10 April 2019 for unsatisfactory course progress.

15. Just prior to the scheduled hearing the applicant forwarded the Tribunal numerous documents, which the Tribunal has considered. These included:

    a.copies of his school records; and

    b.a confirmation of enrolment A9593049 for an Advanced Diploma of Leadership and Management issued on 10 May 2019 for the period of 10 May 2019 to 30 June 2019.

16. The Tribunal has considered all of this material in the course of its deliberations.

    The applicant’s circumstances in his home country

17. The applicant was asked about his personal and family circumstances in India and he agreed that he came from a fairly well off family in India.

18. The applicant confirmed that he has never had a job in India. The applicant was asked what social or community ties he retains with India. The applicant said that he is planning to return to India permanently after he finishes his course in June 2019 and expects to be gone by the end of July 2019. The applicant was asked if there were any circumstances which might cause him to change that plan and he said “No, never” and he wants to go back.

19. Adopting the procedures in section 359AA of the Act it was put to the applicant that he had not returned home to India once since coming to Australia in 2014 and has not seen his de facto partner since 2010. And these were matters which might lead the Tribunal to find that whatever the strength of his ties to India that they do not present a significant incentive for him to return to India and if the Tribunal so found that it might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student and that might be all or part of the reason for affirming the decision under review.

20. The applicant confirmed that he understood this and was invited to comment or respond or seek more time before doing so. The applicant said he would reply. The applicant said that he had not travelled because he had had health issues and is having bowel surgery every two years to remove polyps. The applicant said that he will be able to have this treated in India. The applicant said that his mother has diabetes and he wants to be there to care for her.

21. There is no relevant evidence regarding the applicant’s circumstances in his home country relative to others in that country and the Tribunal makes no findings in that respect.

22. Having regard to the foregoing the Tribunal finds that the applicant’s circumstances in India would present as a significant incentive for him to return home.

    The applicant’s circumstances in Australia

23. In a written submission the applicant said that his brother and sister are both Australian citizens and are married with families living in Brisbane and they have no plans to return to India. The applicant said that his brother and sister are busy with their own lives and families but he lives in one house with both of them and their families and he is paying rent. They know that he is planning to leave in the middle of this year and they know his mother is ill and they are not encouraging him to stay.

24. The applicant said that he has not developed any relationships in Australia or been offered any opportunities that might make him want to stay in Australia. The applicant said that he is not currently working but worked previously as a cab driver and had a driver’s licence before he came to Australia.

25. The applicant said that he had been earning around $500 per week for a period of some nine months in that previous employment but he stopped that job because the company went bankrupt. He is not looking for work at the moment and is concentrating on his studies.

26. Having regard to the foregoing the Tribunal finds that the applicant’s circumstances in Australia do not present as a strong incentive for him to remain in Australia.

    The value of the course to the applicant’s future

27. The applicant said that his previous certificate of enrolment was cancelled for unsatisfactory progress but that he has re‑enrolled with the same provider. The applicant said that his health is okay now and he is confident that he can complete his course and return to India.

28. The Tribunal notes that the applicant’s course is due for completion in June 2019, and that the applicant has stated that he expects to leave Australia in July 2019.

    The applicant’s immigration history

29. Following the procedures in section 359AA of the Act the Tribunal put to the applicant that he has now lived in Australia for over five years and never complied with the terms of his original visa and has now had an enrolment cancelled for unsatisfactory progress and that these might be matters which the Tribunal relies upon and leads to it making adverse findings regarding his immigration history. And that if the Tribunal so found that it might form all or part of the reason for finding that he is not a genuine applicant for entry and stay as a student, which would mean that he would not be granted a student visa.

30. The applicant confirmed that he understood this and was invited to comment or respond or seek time before doing so. The applicant said he would reply. The applicant initially found study in Australia very difficult but has progressed through various courses to his current level and he said that this is the last qualification he is seeking. The applicant said that his health had been a big factor in his progress.

31. The Tribunal accepts the applicant’s evidence and makes no adverse findings in relation to his immigration history.

32. The Tribunal finds that there is no evidence of any other relevant matters before the Tribunal.

33. On the basis of the above the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet clause 500.212(a). Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as is required by clause 500.212.

34. Given the above findings the Tribunal finds that the relevant criteria for the grant of a Subclass 500 (Student) visa are met. The Tribunal sets aside the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa and remits the matter to the Minister for reconsideration with the direction that the applicant meets the criterion under clause 500.212(2) of Schedule 2 to the Regulations.

    DECISION

35. The Tribunal remits the decision under review with the direction that the applicant meets clause 500.212(a) of Schedule 2 to the Regulations.

    Roger Maguire
    Member