Singh (Migration)

[2019] AATA 3035

Singh (Migration) [2019] AATA 3035 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1708809

DIBP REFERENCE(S):  BCC2016/4019394

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 January 2019 at 10:52 am (QLD time)

DATE OF WRITTEN RECORD:                27 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–genuine temporary entrant criterion not met – using student visa to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, 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 17 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 29 November 2016. 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, in the delegate’s view, satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 as the delegate formed the view that the applicant was not a genuine temporary entrant.

6. The applicant has provided the Tribunal with a copy of the delegate’s decision record dated 5 April 2017.  The Tribunal has also had access to the relevant file of the Department of Home Affairs.

7. The applicant appeared before the Tribunal to give evidence and present arguments, assisted by his Registered Migration Agent for the purposes of the review proceedings.

8. The Tribunal acknowledges that in addition to the Departmental file, the Tribunal also has in front of it a “Genuine Temporary Entrant” statement that has been filed in the Tribunal by the applicant, along with a letter from the American College dated 15 January 2019, which outlines some circumstances relating to the applicant’s Confirmation of Enrolment status during his time in Australia.

9. In addition, the Tribunal has various records relating to the American College, which is where the applicant has undertaken all of his studies during his time in Australia along with a copy of the applicant’s Punjab School Education Board certificate. In addition to these documents, the Tribunal also has in front of it the PRISMS records relating to the applicant’s study during his time in Australia.

10. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file a copy of these records from the PRISMS database. For completeness, the Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal then explained to the applicant what the PRISMS database is, the relevance of the records to the review before the Tribunal, and then asked the applicant if he understood the consequences of the Tribunal relying upon the information.

11. The Tribunal confirmed that the applicant did understand the relevance and consequences of the information being relied on. The Tribunal then invited the applicant to comment on or respond to the information and advised the applicant that he may seek additional time to respond or comment to the information. The applicant elected to respond at the hearing.

12. The applicant has been enrolled in a range of courses during his time in Australia. The applicant told the Tribunal that he initially arrived in Australia in October of 2008 on a Student Guardian visa with his then wife who was studying at the Holmes College. In 2011, the applicant and his wife unfortunately separated. At that point in time, the applicant decided to apply onshore in 2012 for a TU 572 visa. In the applicant’s words, he wanted to remain in Australia and enrolled in study because “he had no other options” to remain otherwise.

13. The applicant then decided that he would undertake a course of business studies.  What the PRISMS records reveal is that the applicant has completed a range of business studies during his time in Australia.  He has completed a Diploma of Management, a Diploma of Business and a Diploma of Business Administration. Additionally, he has completed an Advanced Diploma of Management and an Advanced Diploma of Business. All of these studies in business, which the applicant asserts was his original plan when he embarked on study in Australia, were finished by 2015.

14. The Tribunal accepts the information that has been provided by the applicant from the American College. That information indicates that there have been a range of difficulties relating to the applicant’s Confirmation of Enrolment status during his time in Australia that have not been through any fault of his. Regardless, despite these difficulties, the applicant has completed a range of studies. In addition to the five qualifications that the applicant has in Business, he has also completed a Certificate IV in Spoken and Written English.

15. The Tribunal asked thee applicant why, if his original plan was to commence business studies in order to open a business when he returned to his home country of India, he did not depart in 2015 when he had finished his studies. The applicant has been unable to provide the Tribunal with any great detail, or really, any detail about what his plans are on return home, in relation to the business studies. Rather, the applicant has now formed what the Tribunal would call some loose plans to open a restaurant and catering business on return home. He says that these plans came to him sometime around 2016.

16. At this point, the applicant took a different trajectory with his studies and, having already completed a range of business qualifications, then embarked on a line of study relating to Commercial Cookery. The applicant has completed already a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and now seeks to complete an Advanced Diploma of Hospitality Management.

17. The Tribunal is concerned that this is a sideways trajectory, and the Tribunal considers that this is for purposes of extending the applicant’s time in Australia, as opposed to being for genuine study reasons. The reason that the Tribunal has reached this conclusion is that it has pressed the applicant for detail about how the qualifications would benefit him back home.

18. In the applicant’s own words, he says that he is presently focusing on his study and planning in his mind the restaurant that he might open back home. In other words, the Tribunal considers that the plans are loose and tenuous and do not have any solid foundations to them.

19. The Tribunal has, in considering Ministerial Direction Number 69 asked the applicant about his circumstances back home, and in Australia, and to explain the ways that the proposed qualifications would benefit him. The applicant’s focus in responding to the Tribunal’s questions has been to respond that he wants to leave Australia with a clear immigration history. The Tribunal understands that this is the applicant’s desire.

20. The applicant has explained to the Tribunal that he has a mother, father and brother back home in India, that his father owns a farm and that he will inherit the property upon his father’s death. He has returned home twice during the time that he has been in Australia, which has now been since 2008.

21. At present, the applicant is working for a cleaning company 20 hours a week and is also working as a volunteer in a restaurant called “What the Fork” located in New Farm. The applicant tells the Tribunal that he is not receiving any money for the volunteer work in the restaurant. There is no information which contradicts this and the Tribunal accepts the applicant’s evidence on that point. 

22. Regardless, the Tribunal has concerns that the applicant is not a genuine temporary entrant given the length of time and diversity of courses he has undertaken since his arrival in Australia. The Tribunal does not consider that the applicant has been able to explain with any lucidity the reason for his transfer from business studies, where he has several closely related qualifications, to a completely new line of study.

23. For these reasons the Tribunal considers that the applicant does not genuinely intend to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a) of the Regulations. Given this, the Tribunal is not satisfied that the applicant is overall a genuine applicant for entry and stay as a student as required by cl.500.212.

24. Given these findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not 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

25. The Tribunal affirms the decision under review.

    Bridget Cullen
    Member