Singh (Migration)

[2018] AATA 5767

Singh (Migration) [2018] AATA 5767 (11 December 2018)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahavir Singh

CASE NUMBER:  1715248

HOME AFFAIRS REFERENCE(S):           BCC2017/1009511

MEMBER:Stephen Conwell

DATE:11 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 11 December 2018 at 5:53pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – use of student visa to maintain ongoing residence in Australia – IT studies – hospitality course – does not genuinely intend to stay in Australia temporarily – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 June 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 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.

3. 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily (GTE criterion).

4. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refers to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 13 August 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The invitation was sent to the applicant’s migration agent (‘representative’) at the last address provided in connection with the review and advised that, if the information was not provided in writing by 27 August 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 27 August 2018 the applicant emailed his response to the 359(2) questionnaire. In his response the applicant consented to the Tribunal deciding his review without a hearing - Question 2. Accordingly the Tribunal will determine the review application “on the papers”.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 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 intends genuinely to stay in Australia temporarily.

   Genuine applicant for entry and stay as a student (cl.500.212)

9. Clause 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:

   (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 temporarily?

10. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under 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 his home country, potential circumstances in Australia, and the value of the course to the applicant’s future.

    ·       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.

    ·       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.

11. 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.

12. The Tribunal has reviewed the delegate’s decision of 5 April 2017 which was provided by the applicant with his application for merits review. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

13. The delegate’s decision in summary notes:

    ·the applicant first arrived in Australia on 29/01/2014 as the holder of a student visa (TU-573) granted offshore on 09/01/2014 and valid until 15/03/2017.

    ·The applicant’s last student visa (TU- 573) was granted under the streamlined visa processing arrangements (SVP) and was subject to condition 8516 which requires the visa holder to continue to be a person who would satisfy the primary condition for the grant of the visa.

    ·Examination of his study history in the Provider Registration and International Student Management System (PRISMS) indicated that the applicant has only completed a Certificate III in Commercial Cookery since arriving in Australia on a student visa TU-573 on 29/01/2014.

    ·Further, the applicant did not maintain enrolment with an eligible education provider under the streamlined visa processing in breach of visa condition 8516 (Maintain eligibility). Within seven (7) months of his arrival in Australia, the applicant cancelled the Bachelor course and studied at an education provider and a course of study that are not eligible under the streamlined visa arrangements

    ·The applicant was also reported by his education provider for unsatisfactory course progress on 17/11/2015. As he did not achieve satisfactory course progress he has not complied with visa condition 8202 (continues studying).

    ·The applicant’s study record confirms that he was reported by his education provider for unsatisfactory course progress on 17/11/2015. As he did not achieve satisfactory course progress hey has not complied with visa condition 8202 (continues studying).

    ·The applicant is currently enrolled to undertake a package of courses including a Certificate IV in Commercial Cookery, Diploma of Hospitality and a Bachelor of Business which commenced on 10/04/2017 and is due for completion on 31/12/2019.

    ·The applicant provided a GTE Statement in his Student visa application which the delegate had regard to. However the delegate was not satisfied that the applicant has demonstrated a compelling case as to why he had made such a significant change of direction in such a short timeframe.

    ·The delegate notes that the onus rests solely on the Student visa holder to contact the department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change.

    ·According to departmental records, at no time did the applicant contact the department to advise of his circumstances or seek clarification on these matters.

    ·In considering the factors in Direction 69, the delegate found that:

    othe applicant was unable to provide details as to how his proposed study would substantively improve his future career prospects and remuneration;

    ohe was not satisfied that these courses were selected to improve the applicant’s educational outcomes or further his career. On the contrary, the pathway the applicant has chosen appears more likely to have been based on taking advantage of the streamlined visa processing available to him as a degree candidate when they had no intention of studying at an eligible education provider for a degree level course in Australia;

    oupon taking into account the economic circumstances in his home country relative to his potential economic circumstances in Australia the delegate could not be satisfied that the applicant has significant incentive to return to his home country of India.

    othe applicant’s intention to live in Australia may be motivated by factors other than study.

    owhilst the applicant has personal and family ties to India, given the time he has spent in Australia and the intended period of his future stay onshore, the delegate was not satisfied that these ties represent a significant incentive for him to return to India.

    othe applicant’s study and visa history suggest that he appears to have enrolled in this new course for the purpose of securing a further student visa rather than due to a genuine interest in study.

    oon considering the applicant’s overall circumstances, it appeared that he was using the Student visa program as a means of maintaining ongoing residence in Australia and he does not seem to have a genuine intention to stay in Australia temporarily.

14. The Tribunal has reviewed the delegate’s decision and the applicant’s responses in his Student visa application. The Tribunal also has regard to the applicant’s responses in the completed 359(2) questionnaire and to his GTE Statement to the Tribunal received by email of 27 August 2018.  According to his responses/evidence submitted:

    ·He has completed  Certificates III and IV in Commercial Cookery and the Diploma of Hospitality.  However he did not complete the Diploma and Bachelor of Information Technology (IT) that he was enrolled in when he first arrived in Australia.

    ·He commenced work as an assistant head chef in February 2016 at Pizza e Vino restaurant, earning $36,400 pa..

    ·Since his arrival on 29 January 2014, he has not left Australia.

    ·He is currently enrolled in a Bachelor of Business which will be completed on 31 December 2019.

    ·His plan is to complete his Bachelor of Business and seek employment in the hospitality sector on his return to India. Eventually he plans to open his own ‘fusion’ restaurant, offering Italian and Asian cuisine.

15. The Tribunal has considered all the above information and has regard to the factors in Direction 69.

16. The applicant claims that he felt “overwhelmed” by the IT diploma course and was advised by his education provider that he could switch to a Diploma of Business without breaching his visa conditions.  However after seeking migration advice he decided to make a significant change in his study pathway from IT to hospitality.

17. He admits to having breached his visa conditions however he claims that his youth and inexperience with migration laws made him unaware of the legal consequences of his actions. The Tribunal does not accept that “youthful inexperience” or lack of knowledge of Australia’s migration laws are satisfactory explanations for a visa holder’s breaches of visa conditions.  There was no evidence submitted in support of the applicant’s claim to have received advice from his education provider that his proposed change from his IT studies would not adversely affect his visa status.

18. In his GTE response to the Tribunal the applicant states that he:

    enrolled in a hospitality course leading to a Bachelor’s Degree after watching the scope and success of qualified hospitality professionals, some of them were my friends who were working for reputed restaurants and had a carved a 457-pathway leading to a permanent residence status. 

19. The Tribunal notes that this suggests that the applicant’s change of course was motivated by migration and visa considerations rather than by a desire to progress academically. The Tribunal further notes that the applicant’s current employment is relatively well-paid given the work limitations attaching to his visa. 

20. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to his home country and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

21. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, he appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily.

22. Overall, given lack of evidence of academic progress, his study history, his ongoing well-paid part-time employment, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs; the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.

23. On the basis of the above, and having considered any other matters it considers relevant, 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).

    Conclusion on cl.500.212

24. 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.

25. Given the above 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

26. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Stephen Conwell
    Member