Singh (Migration)

[2019] AATA 2592

Singh (Migration) [2019] AATA 2592 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurtej Singh

CASE NUMBER:  1723337

DIBP REFERENCE(S):  BCC2017/2923082

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:          26 March 2019 at 11:06 am (VIC time)

DATE OF WRITTEN RECORD:                20 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 May 2019 at 1:55pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – study history in Australia – unsatisfactory academic progression – change of study direction – vague future plans – unlikely to complete proposed course – length of time onshore – limited travel home – income disparity – decision under review affirmed

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 25 September 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (Cth) (‘the Act’).

2. At the hearing on 26 March 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 is a citizen of India. The Applicant seeks a review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 September 2017 refusing to grant the Applicant a student temporary visa under section 65 of the Migration Act.

4. The Applicant applied for the visa on 15 August 2017. 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 of schedule two of the Migration Regulations 1994 (Cth) (‘the Regulations), namely that the Applicant was not considered to be a genuine Applicant for entry and stay as a student.

5. A copy of the delegate’s decision was provided by the Applicant to the Tribunal with the review application. The Applicant appeared before the Tribunal today to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, although the Tribunal notes that most of the hearing was conducted in English because the Applicant did not require the use of an interpreter for most of the time.

7. The criteria for a subclass 500 student visa are set out in part 500 of schedule two of the Regulations. The primary criteria of clauses 500.211 to 500.218 must be satisfied by at least one Applicant, other members of the family unit if there are any who are Applicants for the visa, need only satisfy the secondary criteria. Whether an Applicant satisfies the criteria is to be determined at the time that the Tribunal’s decision is made.

8. In this case there is only one Applicant. The issue in this case is whether the Applicant satisfies the primary criteria contained in clause 500.212 of the Regulations. Clause 500.212 of the Regulations states that an Applicant will be a genuine Applicant for entry and stay as a student because the Applicant intends genuinely to stay in Australia temporarily and because the Applicant intends to comply with any visa conditions and because of any other relevant matter.

9. In relation to the question of whether the Applicant intends genuinely to stay in Australia temporarily, the Regulations oblige the Tribunal to have regard to the Applicant’s circumstances, their immigration history and if they are a minor, the intentions of any parent, legal guardian or spouse, as well as any other relevant matter. The Tribunal notes that in this case the Applicant is not a minor which means only the intentions of the Applicant are relevant.

10. In relation to the question of whether the Applicant intends to comply with any visa conditions, the regulations oblige the Tribunal to have regard to the Applicant’s record of compliance with conditions of previous visas granted as well as the Applicant’s stated intention to comply with any conditions to which a visa may be issued or may be subject.

11. The Tribunal must also have regard to Direction No 69 issued by the Minister for Immigration and Border Protection on 1 July 2016. That Direction is titled, “Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications.” That obliges the Tribunal to consider several factors before reaching a decision on any student visa application. In short, these factors elaborate upon the regulatory criteria and relate to the Applicant’s circumstances in their home country, their potential circumstances in Australia, the value of the Applicant’s proposed course of study to their future, the Applicant’s immigration history and a range of other factors.

12. The Tribunal has considered the application of these factors in the case now at hand. 

13. In this case it is the Applicant’s second student visa application. The Applicant originally arrived in Australia on 2 May 2014 on a valid TU573 higher education sector visa. The original purpose of that visa which was confirmed in the evidence by the Applicant. He was to use that first visa to study in Australia at Holmesglen Institute and Charles Sturt University. In evidence before the Tribunal, the Applicant confirmed that this was essentially an education package whereby the Applicant would undertake a number of courses, first starting with a Certificate IV in Business, then advancing to a Diploma in Management, then an Advanced Diploma, and finally he would enrol in and complete a Bachelor of Business course.

14. The original plan in accordance with the original terms of that visa is that he would have finished that education package by the end of 2017. As it turns out, he did not complete any of the courses originally proposed. Instead, he transferred to a Certificate IV in Commercial Cookery when he was part-way through undertaking the Certificate IV in Business course.  He has now completed that Certificate IV in commercial cookery course. 

15. He has also subsequently enrolled in and completed a Diploma of Hospitality and Management.  He has completed no other courses and obtained no other qualifications in the almost five years that he has been in Australia as a student.

16. I have considered the circumstances that the Applicant raised including family travels, issues with anxiety and depression and other matters. He indicated that he is not on and never has taken medication for these issues. It appears that the Applicant has had to deal with a number of life stressors during his stay in Australia and these have had a tendency to overwhelm him at times and to such an extent that his success in his studies has, it appears, been detrimentally effected.

17. These life stressors, however, do not constitute an excuse for failing to satisfy the regulatory requirements associated with the student visa regime. The Tribunal is not satisfied that the Applicant has articulated a cogent and satisfactory plan for his future. At various times when the Applicant was asked what kind of job he would obtain when he returned to India with his qualifications, including the proposed Bachelor’s course that he now is to undertake, he was not very specific at all. He indicated that he would obtain some kind of job that was possibly in the hospitality sector.

18. He appears to lack specific direction to such an extent that he is not able to satisfy the Tribunal that his intentions to study for the now proposed Bachelor of Business degree are genuine. Indeed, the Tribunal considers it unlikely that he will successfully complete the bachelor’s course that he now proposes in light of his education history in Australia to date.

19. In that regard, he has been in Australia for almost five years. In all that time he has only obtained two vocational education and training qualifications. He should have obtained a bachelor’s degree by now. The Tribunal is not satisfied by the Applicant’s explanations for failing to reach this goal by now. The Tribunal has concerns that the intentions to remain in Australia temporarily and as a student are not genuine. The Tribunal is not satisfied that the Applicant’s family who reside in India, being his parents, constitute a significantly strong incentive for him to return to India.

20. During his time in Australia he has returned to India only once. The Tribunal has taken into account that there are no military service concerns or political or civil unrest in India. The Tribunal has noted that the Applicant has no adverse immigration history although it is reasonably clear from the evidence before the Tribunal that he has not maintained satisfactory academic progress at the time that he has been in Australia. That was a condition on which the original student visa had been granted.

21. The Tribunal accepts that the bachelor’s degree now proposed may be of some value to him upon his return to India and that he could expect greater remuneration in India by having it and the Tribunal also accepts the Applicant’s contention that Australia’s education system may provide the Applicant with a better qualification than India’s education system.  However, all of these matters carry very little weight in light of the Tribunal’s view that he is unlikely to complete the now proposed bachelor’s degree.

22. The Tribunal has also had regard to the relative economic disparity between Australia and India. The United Nations ranks India 130th on the relevant index compared to Australia being third. That in itself is an objective measure which indicates the Applicant may have a motivation to remain in Australia on a longer term basis.

23. In all the circumstances the Tribunal on balance is not satisfied that the Applicant genuinely intends to stay temporarily in Australia as a student.

    DECISION

24. The Tribunal affirms the decision under review.

    Jason Harkess
    Member