Singh (Migration)

[2019] AATA 1891

Singh (Migration) [2019] AATA 1891 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

CASE NUMBER:  1718065

DIBP REFERENCE(S):  BCC2017/1030238

MEMBER:Mark Bishop

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 February 2019 at 11:51 am (VIC time)

DATE OF WRITTEN RECORD:                6 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl.500.212 of the regulations. 

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – reasons for studying in Australia – personal ties in Australia – value of course – Bachelor of Tourism and Hospitality Management – reasonable changes in study pathways – recent academic achievements – relevance to future employment – past breaches of visa conditions – failure to maintain enrolment in higher education sector courses – 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 26 July 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 21 February 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

   ORAL DECISION OF MEMBER BISHOP   [11.51 AM]

3. MEMBER:  It is 11.51 am on 21 February 2019.  This is an oral decision in matter number 1718065, the applicant being a Mr Sandeep Singh.  The applicant came to Australia to study in the field of IT, following graduation from a university in India.  He commenced his studies in IT at diploma level, and over a period of two semesters was generally unsuccessful.

4. Because of his poor study outcomes he was unable to enrol in a bachelor’s degree.

5. He then engaged in consultation with friends and family from India, and determined to change his study approaches, and enrolled in a set of courses in the hospitality industry at certificate and diploma level over a period of three years.  Whilst he was so enrolled in the hospital management courses in the vocational and educational training sector, he was in breach of conditions attached to his visa, as he was required to enrol and remain enrolled in registered courses in the higher education sector.

6. The tribunal regards those breaches as not being minor or incidental or accidental.  The tribunal regards those breaches as being serious and sustained over time.  The applicant proceeded to enrol in three courses in hospitality management, and has concluded his studies in those three courses.  Accordingly, the applicant is now a person who has trade, vocational and management skills.  He has trade and vocational skills that would enable him to seek and gain employment as a cook or chef in either the hospitality industry in Australia or in his home country.

7. He has sector-specific management skills that would give him the ability to engage in management and administration of hospitality enterprises that derive from his diploma of hospital management. 

8. The applicant advised the tribunal that he comes from a wealthy family, that there is a ready availability of funds to assist in his tuition whilst in Australia, and to assist in the provision of capital if he should return to his home country to create his own business in due course.

9. The applicant advised the tribunal that he had not returned home at the completion of his studies but instead had enrolled in a Bachelor of Tourism and Hospitality Management at Academies Australasia.  He provided a letter dated 14 January 2019 to that effect, and that letter advised that he had been enrolled in the bachelor degree.  He had completed 11 of 24 subjects, and was scheduled to conclude his program in July of 2020. 

10. The applicant advised the tribunal that it was then his intention to return home and begin the preparatory work of either gaining employment or opening his own hospitality management enterprise in a fast-growing city that is located near his parent’s home but is becoming quite renowned for the level of tourist visits from both abroad and within India because of famous sites that are of attraction to people.

11. The tribunal now turns to Ministerial Direction Number 69. 

12. The applicant advised that he would complete his bachelors degree in July of 2020.  He was quite honest and forthright in his submissions, as he advised quite correctly that there are plenty of similar courses available in India, and that submission strikes the tribunal as being quite common sense.  That in a country as large and as wealthy as India there would be numerous institutions that provide services for students. 

13. The applicant advised that in India the courses were expensive, entry into courses is competitive and the numbers that can get enrolled are limited.  He advised that good courses are not available in the Punjab.  As a consequence, he came to Australia to engage in his higher education because he believes the education system and courses in Australia are more advanced than that on offer in India.

14. The tribunal does not accept the submission.  The tribunal is of the view that if a person is able to travel two, three, four, five thousand kilometres to a foreign country to live and study, he can shift to another part of his own state in his own country.  Nonetheless, the tribunal accepts that living in a predominantly English-speaking country, the applicant would gain quite serious and advanced communication skills derived from his residence in Australia.

15. The tribunal is of the view that a similar course is available in his home country or region, and the tribunal is also of the view, however, that the applicant does have reasonable reasons for not undertaking the study in his home state or home country. 

16. The applicant advised the tribunal that his father is alive, with a government job.  His father is wealthy.  His father has significant assets and in due course his father’s estate will pass to him and his brother. 

17. He advised that his father assisted from time to time with payment of tuition fees in Australia, and at the conclusion of the review hearing the applicant’s migration agent advised the tribunal that the applicant in studying at bachelor level now, was paying quite significant sums in tuition fees, and there was no cost advantage really in doing expensive courses in Australia, and the tribunal accepts that submission.

18. The tribunal is of the view that the applicant’s personal ties to his home country are significant, and those ties, particularly of family and assets and wealth, factor as a significant incentive for the applicant to return to his home country in due course.  The applicant advised the tribunal that in more recent times he had worked as a part-time taxi driver, two or three shifts per week, and earnt approximately $500 per week.  He advised that he lives in a share house in a suburb near Glen Waverley and advised that he is in a relationship with a woman and has been in such relationship for approximately two years.

19. The tribunal is of the view that the applicant’s economic circumstances in Australia do not present as a significant incentive not to return – the tribunal is of the view that the economic circumstances of the applicant do not present as a significant incentive to return to his home country.  The applicant advised that he did not have any military service commitments.  He was not aware of any political or civil unrest in his home country, and that his economic circumstances in India, if he should return to home, would be that he would be better off than most people in his home city or home state.

20. The tribunal accepts the evidence of the applicant that he does not have any military service commitments in his home country, and he is not aware of any political unrest in India.  There was limited evidence before the tribunal as regards to the applicant’s circumstances in his home country, relative to the circumstances of others in that country.  The tribunal, however, does not make an adverse finding against the applicant in terms of clause 10 of Ministerial Direction 69. 

21. The applicant advised that he did not have any family in Australia, that he was currently in a relationship with a woman from the Punjab, in Australia.  He advised, quite naturally, that he socialises with her and sees her on a regular basis, and that he has developed a small network of friends from study and work in his period of residency in Australia.  The tribunal is of the view that the applicant’s ties in Australia, particularly those of community and relationship, present a strong incentive to remain in Australia.

22. There is no evidence before the tribunal that the applicant is using the student visa program to circumvent the intentions of the migration program, and the tribunal is of the view that the applicant is not using the student visa program to maintain ongoing residence.  There are no secondary applicants before the tribunal so the tribunal does not need to consider clause 11(d) of Ministerial Direction 69.

23. The tribunal now turns to the critical aspect of today’s deliberations:  the value of the course to the applicant’s future.  The applicant advised that he had been enrolled in a Bachelor’s degree in Tourism and Hospitality Management at Macquarie University since July of 2018.  He has almost completed half of the subjects in that course, and if he maintains his schedule, he will complete the course in July of 2020.  The tribunal explored with the applicant what was the net gain from further study at bachelor level, considering that he already had trade, vocational and management qualifications from his study in the vocational and educational trainings sector.

24. The applicant advised that completion of the degree enabled him to find employment.  He had more options in terms of gaining employment, and that his family, whilst it does not have actual interest in hospitality at the moment, has the ability to raise capital to assist him in developing his own business if that should be his choice sometime in the future.  The tribunal had been concerned at the applicant’s transfer in educational enrolments from IT to hospitality management.  The principles do allow for a reasonable change of course and for reasonable changes to study pathways.

25. The tribunal has taken into account these changes.  The tribunal has taken into account breaches of earlier visa conditions when he first came to Australia.  The tribunal, however, is of the view that the applicant is seeking to undertake a course that is consistent with his current level of education and that the course will assist the applicant to obtain employment or improve employment prospects in his home country.  The tribunal has come to the view, mainly because of the applicant’s success in his studies at VET level, and his current success at university level, that the course does have value to the applicant’s future, and the tribunal is able to see the relevance of the course to the student’s past or proposed future employment in his home country.

26. The applicant gave evidence that he would be able to obtain well-paid employment in India in the hospitality industry.  That may well be the case.  The applicant did not provide any evidence of that, apart from assertions from the bar table.  Accordingly, there is insufficient information before the tribunal as to the remuneration the applicant could expect to receive in his home country or a third country, compared with Australia using qualifications gained from those courses of study.

27. The tribunal has given consideration to the breach of conditions, and has had a lengthy discussion with the applicant and his migration as to that.  And whilst breaches of conditions cannot really be excused, the tribunal does not make an adverse finding against the applicant concerning his failure to enrol or maintain enrolment in the higher education sector in the first year that he came to Australia.  The tribunal does not make any adverse findings against the applicant in terms of clause 13 and clause 14 of Ministerial Direction 69.

28. The tribunal is satisfied that the applicant, whilst enrolled in the vocational education training sector, now enrolled in the higher education sector, has enrolled, has studied, has completed his diplomas, and has achieved graduation certificates.  The tribunal is not of the view that the applicant was using the student visa program primarily for maintaining ongoing residence.  The tribunal is not of the view that the applicant has been onshore for some time without successfully completing a qualification.

29. As the applicant is over the age of 18, the tribunal does not need to consider clause 15 of Ministerial Direction 69, and there were no other relevant matters that required  consideration by the tribunal.  Accordingly at 12.08 pm, it is the decision of the tribunal to remit the application to the Department for reconsideration with a view to granting of a student visa.  It is now 12.09 pm.  The review application is completed.

    END OF ORAL DECISION

30. .

    DECISION

31. The Tribunal remits the decision under review with the direction that the applicant meets cl.500.212 of the regulations.

    Mark Bishop
    Member