Singh (Migration)

Singh (Migration) [2018] AATA 5148 (16 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurwinder Singh
CASE NUMBER:  1706575
HOME AFFAIRS REFERENCE(S):           BCC2016/3550394
MEMBER:Stephen Conwell
DATE:16 November 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 16 November 2018 at 11:15am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – lack of academic progress – two significant gaps in studies – maintaining ongoing residence in Australia – value of the course to identified career path – applying for permanent residence – ties to the home country – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2 cl 500.212
CASES
Saini v Minister for Immigration and Border Protection [2016] FCA 858
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 March 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 25 October 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.
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 the applicant is a genuine temporary entrant.
The applicant participated in the hearing by telephone on 7 August 2018 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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’ refer to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa and Student Guardian Visa Applications, made under s.499 of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 is a genuine temporary entrant under the requirements of cl.500.212 of the Regulations.
Genuine applicant for entry and stay as a student (cl.500.212)
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.
The applicant provided a GTE statement to the Department (DIBP fol. 73-81) stating in summary:
·      He arrived in Australia in March 2014 and enrolled in a Diploma of Information Technology (IT) leading to a Bachelor of Information Technology.
·      In regard to the applicant’s Provider Registration and International Student Management System (PRISMS) study history showing that he was not enrolled –
ofrom 30 May 2014 to 8 October 2014, he submitted proof of enrolment for the term starting July 2014;
ofrom 29 January 2016 to 18 July 2016, he admits the study gap but claims it was the result of his being distracted by his mother’s ongoing health issues from 2014 onwards.
·      A VET diploma will not help with his career plans due to the competitive nature of the job market in his home country of India; he is determined to complete a bachelor qualification as he originally intended.
·      His career plan is to utilise his Australian qualifications to improve his family’s agricultural business.
·      He seeks enrolment in a Bachelor of Business (Management), intending to “have [a] successful career in Management field.”
·      His parents own a business and residential home in India.
Summary of the delegate’s decision
According to the decision record:
·      The applicant arrived in Australia on 2 March 2014 on a Student TU 573 Higher Education (HE) visa.
·      His PRISMS record indicates that that the applicant has previously been enrolled in the following Course(s):
o    Diploma of Technology
o    Diploma of Information Technology
o    Diploma of Business
o    Bachelor of Information Technology
·      PRISMS also indicates that the applicant has only completed a Diploma of Business since arriving in Australia, that he did not study between 30 May 2014 to 8 October 2014 and 29 January 2016 to 18 July 2016, a total of 304 days.
·      The delegate found that the applicant’s current enrolment in Bachelor of Business (Management) to be unrelated to his previous enrolment in Diploma of Technology and Bachelor of Information Technology and therefore questioned the value of this new course to the applicant’s future.
·      The delegate not consider this to be a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.
·      The applicant claims to have been enrolled in July 2014 and as evidence have provided an enrolment receipt for Semester 2 2014 issued 4 July 2014. The delegate acknowledged that the applicant may have been enrolled in a course of study at the time this receipt was issued, however his PRISMS record does not support the claim that he actually commenced a course.
·      The delegate further notes that PRISMS indicates the applicant left his education provider and discontinued a Diploma of Information Technology on 8 July 2014, obtaining a refund of this payment. Accordingly the delegate gave no weight to the applicant’s explanation that he was enrolled in an acceptable course of study for the period in question.
·      The delegate took account of the applicant’s comments that his mother was unwell and the medical evidence submitted to the department supporting his claim however the delegate notes that the applicant did not depart Australia to visit his mother during this time so little weight was given to this statement.
·      The delegate was not satisfied that he has provided an acceptable explanation for the identified gap in their studies of over 10 months as he continued to remain in Australia and did not undertake any studies.
·      The delegate was not satisfied that –
o    the applicant had provided an acceptable explanation for the identified gap in his studies of over 10 months as he continued to remain in Australia and did not undertake any studies;
o    the applicant had provided any substantial reasons as to why he has chosen to study these business/management courses.
·      the delegate therefore gave weight to the lack of apparent value of the courses to his future which indicates that he does not genuinely intend to stay in Australia temporarily
·      Overall, given the applicant’s lack of academic progress, his study history, potential circumstances in Australia, immigration history and the lack of value of the courses to the applicant’s future, the delegate found that he was using the Student visa program to circumvent permanent migration programs.
·      As a consequence the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student and that he intends to stay in Australia temporarily.
The applicant submitted a number of documents/evidence to the Tribunal at or following the hearing, including:
·      Submission by his representative dated 29 July 2018
·      GTE Statement by the applicant dated 30 July 2018
·      The applicant’s passport - bio data page
·      The applicant’s mother’s passport - bio data page
·      Affidavit of support from his mother in regard to his financial capacity to study in Australia
·      Several pay advice statements of the applicant
·      The applicant’s Australian income tax returns for 2016 and 2017
·      PTE Academic English Test taken on 15 April 2016.
·      Overseas Student Health Cover confirmation – 12//2/2014 - 1/11/2019
·      Certificates and/or academic transcripts for the applicant’s study history in Australia
·      The applicant’s current COEs for enrolment in:
o    Certificate IV in Commercial Cookery (2/07/2018 – 17/03/20194
o    Advance Diploma of Hospitality Management (15/04/2019 – 1/09/2019)
At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in India, in Australia, his immigration and study history and other relevant matters, including the delegate's concerns and findings summarised above.
At hearing the applicant stated/confirmed that:
·      notwithstanding his statement to the Department regarding his future being in business and in particular in assisting his family business, he now saw his career in hospitality, after obtaining work in this sector in Australia. For this reason he cancelled his enrolment in his business studies and transferred to his current studies in hospitality.
·      He agreed that he had not been enrolled for the two study gap periods noted in the delegate’s decision.
·      In March 2018 he was the subject of a sub-class 187 permanent visa application under Regional Sponsor Migration Scheme (RSMS), however he intends to treat it as a ‘temporary visa’ whilst he gains hospitality experience.
·      His brother is also in Australia, probably on a sub-class 489 visa; the applicant and he live together in Adelaide.
·      He has no other family in Australia; he has friends here but has no strong community ties within the local Indian community.
·      He currently works part-time as a restaurant manager for the ‘Dera Indian Restaurant’ in Grange, South Australia, having started the job in February or March 2018; he is paid as a part-time employee and pays tax on his wages.
·      He communicates with his family regularly by phone and social media.
The Tribunal has reviewed all the above material.
The applicant’s circumstances in the home country
The applicant’s circumstances in India are that his parents continue to reside there and maintain their family agricultural business.
The applicant refers to his family assets in his home country, which include a family home and agricultural land. No evidence was tendered regarding these assets and the applicant’s oral evidence confirmed that no such assets are in his name – they are family assets to which he and his brother are entitled. Despite the lack of supporting evidence the Tribunal accepts that the applicant’s family has property and other assets in India, however it appears that the applicant has no property or other substantial assets of his own in India. The Tribunal is not persuaded that the applicant’s family assets in India are sufficient incentive for him to wish to return there.
The Tribunal takes into account the economic circumstances and political climate in the applicant’s home country relative to the economic and political conditions in Australia and finds that the disparity between the two offers a further incentive for him to seek to use the Student visa program to maintain ongoing residence in Australia.
The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 69 that would prevent him from returning to India 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.
The applicant’s potential circumstances in Australia
The Tribunal has regard to the applicant’s potential circumstances in Australia and notes that he has his brother are both in Australia and live together. The Tribunal finds that the applicant has established a comfortable working life in the four and half years he has been onshore. His continuing employment, the companionship of his brother and the possibility of other migration pathways (as evidenced by his sub-class 187 application) appear to be further incentive for the applicant to seek to extend his stay in Australia.
The applicant is a 26 year old single male. The Tribunal gives weight to the applicant’s age and his circumstances in Australia and finds they are significant incentives for him to seek to remain in Australia indefinitely.
The value of the course to the applicant’s future
The Tribunal has regard to the applicant’s study history and to the value of the proposed course to his future. The Tribunal observes that not long after the delegate’s decision, the applicant cancelled his enrolment in business studies, which (according to his statement to the Department) was the motivating force for his wishing to remain in Australia. According to his current COEs he did not enrol in study again until 21 June 2018 – a further study gap in excess of 12 months.
The applicant claims that it is, and has been, his proposition that he wished to acquire business skills, knowledge and qualifications in Australia that he would bring offshore and put to use. Yet following the delegate’s decision he soon abandons his studies and his previously expressed ‘passionate’ business career goal to transfer into hospitality studies, expressing a new-found interest in a hospitality career.
This casts doubt on the value of all of the courses and associated career plans previously claimed by the applicant. Direction 69 indicates that reasonable changes to career plan should be accommodated. The Tribunal considers that the applicant’s conduct displays a pattern of changes which is now a clear trend going beyond the changes contemplated in Direction 69.
In light of the statements made to the Department in support of his visa application concerning his interest in business studies and in assisting his family business, the Tribunal does not find it plausible that within a few weeks of the delegate’s refusal of his visa application, the applicant experiences an epiphany with respect to a new-found passion in cooking which persuades him to pursue a new direction in hospitality.
At hearing the applicant’s evidence that her career plan is to return to India and eventually open his own restaurant, offering Western/India ‘fusion’ food. Yet the applicant was unable to imbue this plan with further details on the set-up costs or business plans of this venture, suggesting to the Tribunal that little thought has gone into its practical implementation. The Tribunal is not persuaded that the applicant’s stated future plan of opening a restaurant in his home country is a well-developed or genuinely held career or business goal. As a consequence the Tribunal finds the applicant’s stated plan to be vague and inchoate.
On the evidence, the applicant’s claimed career aspirations appear tailored to fit with the applicant’s current, or then current, course selection in Australia. That is not as it should be. If the applicant has career aspirations that are claimed to lead out of Australia back to the home country, the courses selected should seek to serve those purposes, and not the other way around.
The Tribunal is not convinced that the applicant’s stated career plans in the hospitality sector are genuinely held by him; they appear to be generic in nature and lack credibility; the Tribunal finds they are self-serving to the applicant and gives little weight to them.
The applicant’s immigration history
In considering the several study gaps noted by the delegate and admitted to by the applicant, the Tribunal finds his study history is not indicative of a genuine student intending to progress academically and with a genuine intention to reside temporarily in Australia.
The applicant was granted a subclass TU-573 visa which was valid to until 28 February 2017. Conditions 8202 (remain enrolled and maintain enrolled at the same or higher level), 8105 (not engage in work for more than a specified period) and 8516 (continues to satisfy the primary criteria) were attached to this visa.
As noted by the delegate the applicant did not undertake any studies for over 10 months between 30 May 2014 to 8 October 2014 and 29 January 2016 to 18 July 2016.The applicant did not dispute this finding. The applicant held a sub-class 573 visa granted for study in the HE sector.
The applicant was in breach of cl.573.231(a) which requires a Student visa holder to study at that certain level. Therefore, the student did not continue to be a person who satisfies cl.573.231(a) because he no longer held a COE in an eligible higher degree course during the period of the visa. As stated, the applicant was not enrolled in an approved course of study in this period. Condition 8516 requires the applicant to continue to satisfy the primary or secondary criteria for the grant of the visa. The Tribunal finds the applicant was in breach of visa conditions 8202(2) and 8516 during this period.
Sub-class 189 RSMS visa
The applicant stated that he was the subject of a subclass 189 visa application lodged in March 2018; this indicates to the Tribunal that he was intending, should the visa be granted, to remain in Australia permanently. In light of this, the Tribunal gives little weight to the applicant’s statement that it he intends to treat the visa a temporary one, should it be granted.
The applicant’s evidence that he is applying for permanent residency through the RSMS migration program only a few months prior to the Tribunal hearing, is in the Tribunal’s view, a relevant and significant matter that is unfavourable to the applicant’s temporary Student visa application, and weighs heavily against his claim to be a genuine temporary entrant.
There is no impediment to the applicant studying in Australia providing the visa he holds permits it. However the Tribunal's view is that he cannot simultaneously consider his time onshore to be temporary for the purpose of being granted a Student visa while he is also pursuing permanent residency through a different visa application. His intention to stay temporarily must be unqualified at the time of decision.

As a consequence the Tribunal is not satisfied that the applicant considers his time onshore to be temporary or that he does not intend to pursue a migration outcome in the future if he is able to find a way to do so.
The expression 'genuinely intends to stay in Australia temporarily' has been subject to judicial consideration in the context of the equivalent pre-1 July 2016 Student visa criteria. It requires that the applicant must unqualifiedly intend his or her stay to be temporary. In Saini v MIBP Judge Cameron held that an intention to remain in Australia if qualified to do so at the end of the Student visa, would amount to the lack of an intention to stay temporarily, because the intention to stay temporarily would not be unqualified. In upholding his Honour's judgment, Justice Logan held that what is required is an evaluation of intention at the time of decision, and if at this time there is a settled intention to later seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention genuinely to stay temporarily.
The Tribunal, on the evidence, finds that the applicant demonstrates a lack of genuine intention to stay in Australia temporarily at the time of this decision because he is, or was, the subject of an application for a permanent resident visa via the RSMS migration program.
In weighing up the evidence the Tribunal is not persuaded by the applicant’s stated claim to be a genuine student intending to reside temporarily in Australia and having strong ties to his home country. The Tribunal finds the applicant’s immigration history, including his application for permanent residency under the RSMS migration program, suggest that he is not a genuine student intending to progress academically, but rather someone who is using the Student visa program to maintain residence in Australia, whilst he pursues other migration options.
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
As noted above the applicant did not undertake any studies for over 10 months between 30 May 2014 to 8 October 2014 and 29 January 2016 to 18 July 2016, which he does not dispute. The Tribunal finds the applicant was in breach of visa conditions 8202(2) and 8516 during this period.
There is no evidence before the Tribunal that suggests the applicant intends to comply with conditions attached to his visa in the future. In view of this, the Tribunal finds the applicant's record of compliance with conditions attached to his previous visa to be one of repeated, sustained and deliberate breaches.
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which a visa may be granted as required by cl.500.212(b).
Any other relevant matter?
There are no other relevant matters.
Conclusion on cl.500.212
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Stephen Conwell
Member

[2018] AATA 5148

16 November 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention