Singh (Migration)

[2019] AATA 1986

Singh (Migration) [2019] AATA 1986 (18 January 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1707660

DIBP REFERENCE(S):  BCC2017/893929

MEMBER:  Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          18 January 2019 at 11:00 am (QLD time)

DATE OF WRITTEN RECORD:                17 June 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

Statement made on 17 June 2019 at 9:54am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – length of time in Australia – period of non-enrolment – change in study direction – no credible explanation – value of course – already possess same qualification from Singapore – position in family business – 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 5 April 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 18 January 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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 April 2017 to refuse to grant the Applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958.

4. The Applicant applied for the visa on 7 March 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.

5. The delegate in this case refused to grant the visa on the basis that the Applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994. The Applicant provided the Tribunal with a copy of the delegate’s decision record dated 5 April 2017. The Tribunal also has had access to the relevant file of the Department of Home Affairs. In addition to this information, the Applicant has provided information to the Tribunal.

6. At the commencement of the hearing, the Tribunal confirmed with the Applicant that it had all of the information that had been filed, and that he expected the Tribunal to have received. This includes a student declaration dated 2 January 2019, outlining the Applicant’s plans for study and circumstances relevant to the review application. Additionally, the Applicant has provided a range of materials relating to his study, including transcripts, records of assessment, his Punjabi school education certificates, and a copy of his Indian passport.

7. The Applicant has also filed in the Tribunal a further statement dated 17 January 2019, setting out further information relating to his studies and particularly to the cancellation of particular Confirmation of Enrolment certificates that were held by the Applicant. Additionally, he has provided an affidavit from his father indicating that he owns particular land on which the Applicant says his father intends to build a hotel. The Applicant has provided a partnership deed between his father and his father’s business partner in relation to the building of a hotel.

8. The Applicant has provided copies of the Indian driver’s licences of his father and his father’s business partner as well architectural plans, which the Applicant says are for the hotel, and photographs he purports indicate that the construction of the hotel is in progress. Additionally, the Applicant has provided the Tribunal with a copy of his birth certificate indicating that his father is Narinder Singh, consistent with the information contained in the partnership documents that he has provided.

9. The Applicant appeared before the Tribunal on both 9 January 2019 and 18 January 2019, as the Tribunal adjourned the hearing on 9 January 2019 in order to give the Applicant the opportunity to provide further information to the Tribunal relating to his family’s plans to commence construction of a hotel in his home country of India.

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1. The Applicant was assisted during the course of the hearing by an interpreter in the Punjabi

   and English languages. On each occasion that the Tribunal held a hearing, the Tribunal confirmed with the Applicant that he understood the Tribunal’s questions as well as the interpretation. The Applicant confirmed that he did understand.

2. The Applicant was assisted in relation to the review by his Registered Migration Agent. The

   Applicant’s Registered Migration Agent attended the hearing on both hearing dates and made submissions on the Applicant’s behalf on both hearing dates.

3. For the following reasons the Tribunal has concluded that the decision under review should

   be affirmed.

4. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the

   Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by the Applicant. The Applicant does currently hold a Confirmation of Enrolment, which indicates that he is enrolled in a course studying an Advanced Diploma of Hospitality Management, which was approved on 14 January 2019 to finish on 15 November 2020.

5. The issue in the present case is whether the Applicant is a genuine temporary entrant.

6. cl.500.212 requires as follows, the Applicant is a genuine applicant for entry and stay as a

   student because:

   a.The Applicant intends genuinely to stay in Australia temporarily having regard to the following:

   1.The Applicant’s circumstances; and

   2.The Applicant’s immigration history; and

   3.If the Applicant is a minor, which is not relevant here; and

   4.Any other relevant matter.

   b.The Applicant intends to comply with any conditions subject to which the visa is grant having regard to:

   1.The Applicant’s record of compliance with any condition of a visa previously held by the Applicant, if any; and

   2.The Applicant’s stated intention to comply with any conditions to which the visa may be subject.

   c.         Any other relevant other matter.

7. In considering whether the Applicant satisfies clause 500.212(a) the Tribunal must have

   regard to Direction Number 69, a copy of which was provided to the Applicant by the Tribunal. That is assessing the genuine temporary entrant criterion for a Student visa and Student Guardian visa applications made under s.499 of the Act.

8. This direction requires the Tribunal to have regard to a number of specified factors in relation

   to:

   1.The Applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the Applicant’s future.

   2.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.

   3.Is not relevant as the applicant is not a minor.

   4.Any other relevant information provided by the Applicant or otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the Applicant.

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1. 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.

2. The Tribunal has had regard to the documentation provided by the Applicant evidencing that he completed high school in India. The Applicant has also told the Tribunal and it is reflected in the delegate’s decision record, that he has obtained a Diploma in International Hospitality Management in Singapore in 2012.

3. In the delegate’s decision record, the delegate has outlined the concerns that the delegate had in relation to the cancellation of a range of Confirmation of Enrolments and the course progress that the Applicant had undertaken while he has been in Australia. As this is a merits review, the Tribunal is obligated to consider afresh all of the factors that are set out in the legislation and the direction, and to reach its own view.

4. The Applicant has confirmed his present course of study as well as the courses that he has completed. As at the time of hearing the Applicant has completed an IELTS course, an Advanced Diploma of Business, a Diploma of Business, a Diploma of Management, and a Certificate IV in Business. At the time of his application to the department for a visa the Applicant then proposed to undertake an Advanced Diploma of Leadership and Management as well as an Advanced Diploma of Hospitality and Management.

5. Ultimately both of those Confirmation of Enrolments were cancelled and the Applicant has re-enrolled and currently holds the Confirmation of Enrolment that the Tribunal mentioned earlier, to study the Advanced Diploma of Hospitality and Management.

6. During the course of time that between his last qualification having been completed in 2017 and his re-enrolment in the course that he presently holds a Confirmation of Enrolment for, the applicant has completed a Certificate IV in Commercial Cookery through recognised prior learning.

7. Whilst it is a credit to the Applicant that he used his recognised prior learning to achieve a personal benefit, rather than sitting idly on his hands, it remains the case that for quite an extended period the Applicant did not hold a Confirmation of Enrolment. The Applicant addresses these circumstances in the letters that he has provided to the Tribunal, as well as in his oral evidence. The Applicant explains the reasons for his not studying variously - that he was stressed, that he got information from the colleges that was unhelpful, that there were over admissions at his course provider, that the college was too far from his home, and that he was very stressed after a family member had passed away.

8. The Tribunal has considered these factors but does not consider that they explain the length of time during which the Applicant did not hold a Confirmation of Enrolment, regardless of the fact that he received a Certificate IV in Commercial Cookery through recognised prior learning during this period.

9. The Applicant has been onshore in Australia since his arrival on 23 July 2013 as the holder of an Offshore Class TU Subclass 573 (Higher Education Sector Student) visa. While he has told the Tribunal that he has returned home briefly, the Tribunal is concerned that in a more than five year period of time the highest level of education attainment by the Applicant is an Advanced Diploma. The Tribunal considers that if he was genuinely committed to his studies there would be ample time for him to have completed the course work that he said he wanted to complete.

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1. The Tribunal is also concerned about the shift in direction of the Applicant’s studies. Whilst it is a credit to the Applicant that during his time in Australia he has completed some qualifications, the Tribunal is concerned that he now seeks to pursue a line of study in the hospitality sector for which he already holds a qualification. The Tribunal has questioned the Applicant extensively about the reasons he would need to complete, in Australia, a further qualification leading to an Advanced Diploma of Hospitality and Management when he already possesses a Diploma in International Hospitality Management from Singapore.

2. The Applicant has explained to the Tribunal that the reason for this is that the Diploma from Singapore is a qualification that took less than nine months and he says that it does not have any value in Australia or India because it is a qualification of less than one year, and he did not do any internship in conjunction with that qualification.

3. This then led the Tribunal to ask if it was the case that his Advanced Diploma of Hospitality Management would provide him with the opportunity to do an internship. The Applicant responded that he did not know whether that would be the case. The Tribunal then considers that it cannot place significant weight on the purported value of an internship to the Applicant’s plans when he returns to India.

4. The Applicant has provided information to the Tribunal, which the Tribunal accepts, indicating that the Applicant’s father has plans to build a hotel in conjunction with a business partner. The photograph of the hotel indicates that whilst ground has broken, construction is at a reasonably early stage.

5. The Tribunal has asked the Applicant to explain what his role would be on return home. The Applicant has said that because it is a family business he would be paid a wage that was in excess of what his father would pay to an outsider. The Tribunal accepts this evidence.

6. The Applicant has also told the Tribunal that his father has indicated that he would not want to employ anybody outside of the family because he could not trust anybody outside the family to do the right thing by his business.

7. The Tribunal has asked the Applicant to explain why it is necessary given that this is a family business for him to complete further study in Australia in circumstances where he already has a qualification. The Applicant has not been able to explain this plan in any rational way, and the Tribunal does not accept that he requires a further qualification to work in his family business.

8. The Applicant has told the Tribunal that with an overseas qualification he will be more readily accepted within the industry back in India. But, the reality for the Applicant, based on the Tribunal’s accepting his evidence about the hotel, is that he is seeking to work in a family business where he already has qualifications and where on his own evidence is that his father does not wish to employ anyone other than the Applicant.

9. For this reason, the Tribunal does not consider that it is, in fact, necessary for the Applicant, having already completed a range of managerial and business qualifications to now complete further qualifications that will only lead to the same level of educational qualification that he already has, that being an Advanced Diploma.

10. The Tribunal has considered the length of time that the applicant has been in Australia. He has now been in Australia for more than five years. He has been enrolled in a range of courses over an extensive period of time. At the commencement of the first hearing date, the Tribunal provided the Applicant with a copy of the PRISMS records that were in front of the Tribunal and confirmed with him the accuracy of those.

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1. The Tribunal did this after having adopted the procedures set out in s.359AA of the Act and explained to the Applicant that these were the records the Tribunal had in front of him obtained from the Provider Registration International Student Management System database. The tribunal explained to the Applicant what the PRISMS database is, the relevance of those records to the review before the Tribunal, and confirmed with the Applicant that he understood the relevance of that information as well as the potential consequences of the Tribunal relying upon that information.

2. The Tribunal invited the Applicant to comment or respond to the information and advised him that he may seek additional time to respond to or comment on the information. The applicant elected to respond at hearing.

3. Because there had been a change in what the Applicant told the Department his study plans were at the time of his application for the visa and the Applicant’s current enrolment, the Tribunal queried with the Applicant why he was no longer interested in pursuing the Advanced Diploma of Leadership and Management. The reason the Tribunal did this is that the Applicant’s current Confirmation of Enrolment, which the applicant enrolled in shortly before the first hearing was held, reflects that he is now only pursuing the Advanced Diploma of Hospitality and Management.

4. The Tribunal considers that the Applicant’s study plans have changed over time in a way that the Applicant has not been able to explain rationally how they fit into his overall study plan. The Applicant’s response to why he was no longer pursuing the Leadership and Management course was that he obtained the advice from his lawyer that he should not pursue this course because it was quite similar to the courses that he had already pursued. For this reason, the advice given to him was that he should pursue the Hospitality Qualification.

5. The Tribunal has concerns with the Applicant having received advice about his course of study from his lawyer, as opposed to his being able to explain himself why it is that he was (or was not) interested in that course of study. The Applicant explained that he did talk to some people at the college, but he did not provide any detail and offered no independent basis for why he would to have pursued, at some stage, the Advanced Diploma of Leadership and Management.

6. For this reason, and considering the divergence away from the Applicant’s management studies, and also considering the fact that the Applicant already has a Hospitality Qualification, albeit one from Singapore as opposed to Australia, the Tribunal considers that the Applicant’s study plan does not support him being a genuine temporary entrant.

7. The Tribunal considers that the length of time that he has been in Australia, his looking for educational advice from a lawyer as opposed to being able to explain himself why he has been enrolled in various courses, his current possession of qualifications that are suitable for work in his family business, and his evidence that his father did not want to hire somebody other than a family member, all support an overall feeling that the Applicant is enrolled in study for the purposes of looking to extend his stay in Australia.

8. The Tribunal understands that the review process is distressing for Applicants, particularly where they are ultimately disappointed with respect to migration outcomes. However, it is the Tribunal’s role to make a fresh decision based on the evidence that is in front of it, and to consider whether that evidence supports a finding that the Applicant satisfies the criterions that the Tribunal must consider.

9. In this case, the Tribunal is not satisfied that the Applicant intends genuinely to stay in Australia temporarily. The Tribunal acknowledges that the Applicant has given evidence that

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his father, mother and siblings reside in his home country and that he has remained in contact with them.

1. The Tribunal confirmed with the Applicant that his employment history, as set out in the delegate’s decision record, was correct. That employment history indicates that although the applicant is not presently working, the Applicant has worked significantly during his time in Australia. The Tribunal confirmed that the Applicant was employed as a delivery driver for Domino’s between December 2013 and March of 2015. He was then employed as a kitchenhand at Café Mondeo from November 2013 to August of 2016. He then had a period of a few months off of work before he was then re-employed at Coles for a period that ended some time in 2018. The Applicant has had a significant period of employment while in Australia.

2. The Tribunal is concerned that weighing up the various factors that are set out in the Direction, that although the Applicant has family remaining in India, there is also incentive for the Applicant to remain in Australia despite the fact that he is not presently employed.

3. The Tribunal is also concerned about the timing of the Applicant’s current Confirmation of Enrolment, which he obtained just prior to the Tribunal hearing, having not held a Confirmation of Enrolment for a reasonably lengthy period of time.

1. Although the Applicant has undertaken the recognised prior learning that the Tribunal referenced earlier, the reality is that he was in Australia on a Student visa for an extended period of time without holding a Confirmation of Enrolment.

2. Balancing all of these various factors the Tribunal is not satisfied that the Applicant intends genuinely to stay in Australia temporarily. Accordingly, the Applicant does not meet cl.500.212(a). Accordingly, the Tribunal is not satisfied that the Applicant is a genuine Applicant for entry and stay as a student as required by cl.500.212.

3. Given these findings the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are met. The Applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

4. The Tribunal affirms the decision under review.

   Bridget Cullen
   Member

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