Singh (Migration)

[2018] AATA 4731

Singh (Migration) [2018] AATA 4731 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satinder Pal Singh

CASE NUMBER:  1711392

HOME AFFAIRS REFERENCE(S):           BCC2017/872975

MEMBER:Mark Bishop

DATE:15 October 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 15 October 2018 at 5:20pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – completed unrelated courses – proof of enrolment – invalid offer – expired overseas health coverage – use of student visa program to extend stay – decision under review affirmed

PRACTICE AND PROCEDURE – no entitlement to a hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 22 May 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 6 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 intended genuinely to stay temporarily in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 meets the genuine temporary entrant criterion.

6. The Tribunal considers cl.500.211 cl.500.212 and cl.500.215 of Schedule 2 to the Migration Regulations.

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

7. 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?

8. 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 s.499 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 their 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.

9. 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.

10. The Tribunal wrote to the applicant on 7 August 2018 requesting information under s.359(2) of the Act in the following terms:

    ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

    ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

11. The Tribunal advised the information should be provided by 21 August 2018 or the applicant had the right to seek an extension of time. The applicant did not respond within time and did not request an extension of time.

12. The applicant did not respond to this request for information. The applicant did not provide any information to the Tribunal.

13. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

14. The applicant did not provide a GTE Statement to the Tribunal.

15. The applicant provided a response to a s.359(2) request for information dated 31 August 2018. That response provided the following information:

    ·He completed a Certificate III and IV in Commercial Cookery in 2015 and 2016. He completed a Diploma of hospitality in January 2017;

    ·He declined to provide any information about work experience prior to coming to Australia;

    ·An application for a student visa was refused in March 2017. He currently resides in Australia pursuant to a Bridging visa;

    ·He has not completed any further courses since January 2017. He withdrew from enrolment in a Bachelor degree;

    ·He is currently employed as a chef. He declined to provide any information as to employer, hours worked, full time or part time or salary;

    ·He seeks to engage in further study after completion of a Bachelor degree an continue residency in Australia until March 2019;

    ·He holds a passport from India, first arrived in Australia in September 2013, has visited his home country on two occasions since September 2013 and has not applied for a visa to another country;

    ·His annual living expenses are approximately $20,000;

    ·He last saw family members in January 2018;

    ·He wishes to apply for a 485  temporary visa at the completion of an Advanced Diploma in Hospitality;

    ·He has no military service commitments and is not aware of any political or civil unrest in India.

16. The applicant provided a copy of an offer of student enrolment dated 15 August 2018. The offer was not signed or dated.

17. The applicant did not provide any evidence of payment of any portion of tuition fees concerning the offer outlined in paragraph 15 above.

18. The applicant did not provide proof of enrolment in a course of study. The applicant did not provide a copy of a Confirmation of Enrolment (COE) to the Tribunal.

19. 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.

20. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

21. 'Course of study' is relevantly defined in cl.500.111 of the Regulations as a 'full-time registered course'. 'Registered course' is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

22. The applicant advised the Tribunal in writing he was currently enrolled in a course of study. He did not provide to the Tribunal proof of enrolment in a course of study. The applicant advised the Tribunal in writing he did have a current COE in an approved course. The applicant did not provide to the Tribunal a copy of a COE in a course of study.

23. There is no evidence before the Tribunal the applicant is currently enrolled in a course of study as required by cl.500.211 of Schedule 2 to the Migration Regulations.

24. Accordingly, the Tribunal is not satisfied that the applicant is enrolled in a course of study as required by cl.500.211.

25. Clause 500.215 relevantly requires that at the time of this decision the applicant provide evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

26. The applicant advised the Tribunal in writing he intended to stay in Australia until at least March 2019. He provided proof of overseas student health coverage (OSHC) that expired on 31 December 2017. He did not provide proof of OSHC after that date.

27. There is no evidence before the Tribunal the applicant currently has adequate arrangements for health insurance in Australia as required by cl.500.215 of Schedule 2 to the Migration Regulations.

28. Accordingly, the Tribunal is not satisfied that the applicant has adequate arrangements for health insurance in Australia as required by cl.500.215 of Schedule 2 to the Migration Regulations.

29. The applicant provided a GTE Statement to the Department. It outlined the following:

    ·The applicant’s current enrolment provides him with a wide range of career options such as business manager, consultant, analyst or operate his own business;

    ·     This program would develop his business, leadership skills, managing people skills and organisation successfully;

    ·     He will gain skills and knowledge to work in a management role;

    ·     He chose Cambridge International College due to its global recognition helping students develop skills and knowledge;

    ·    He chose to study in Australia due to its world class education system, safe environment and affordability

    ·    He dreams of starting his own restaurant business and also intends to work as a manager in the Hospitality sector in India or around the globe;

30. The Tribunal turns to consider Ministerial Direction Number 69 (MD69).

31. The Tribunal considers the applicant’s circumstances in his home country, the applicant’s potential circumstances in Australia, the value of the course to the applicant’s future and the applicant’s immigration history

32. The Tribunal considers C.l 9 and 10 of MD69 - the applicant’s circumstances in his home country.

33. He did not provide substantial evidence of close ties to his home country. He was unable to demonstrate assets or property in his name. He is unmarried and has no dependents. He did not provide any evidence of community links. He did not provide specific detail of potential employment in his home country. Furthermore, given the disparity in the economic circumstances between India and Australia, the Tribunal is not satisfied the applicant will be compelled to return to his home country on account of any economic reasons and the limited family ties in India may present a significant incentive for him not to return to the home country. While the applicant has personal ties in the form of immediate family, the Tribunal finds these ties do not, of themselves, constitute a strong incentive to return home when considered against failing to provide strong economic and personal circumstances in India. The Tribunal is concerned that the applicant’s intention to live in Australia is motivated by factors other than study

34. The Tribunal considers Cl. 11 of MD69 – the applicant’s potential circumstances in Australia.

35. The applicant commenced his studies in Australia in 2013. He completed a package of Hospitality Management courses in 2015/16 and 2017. He is now a trained chef and has had Diploma level exposure to Management concepts in the Hospitality industry. He advised the Tribunal he had work experience as a chef. He advised the Tribunal he was working as a chef. He refused to provide any other information concerning his employment as a chef. The delegate made a finding his visa work conditions had been VEVO checked by prospective employers which is usually a good indicator an applicant is seeking work. The applicant provided detail of his outgoings of approximately $20,000 per annum. He did not advise of savings or receipt of remittances from his home country. In a statement to the Department he advised he was renting with friends. The applicant advised he had withdrawn from study in a Bachelor of Business (Management).

36. The Tribunal is inclined to the view the applicant has ties to Australia of employment and these ties present as a strong incentive to remain in Australia. The Tribunal is of the view the applicant is using the student visa program to circumvent the intent of the migration program and the student visa is being used to maintain ongoing residence.

37. The Tribunal considers Cl.12 of MD69 - the value of the course  to the applicant’s future

38. The delegate outlined the history of the applicant’s enrolment and study in Australia as follows:

    ·    The applicant has enrolled in unrelated courses of Web based Technologies, Information and Communications Technology, Automotive Electrical Technology, Commercial Cookery, Hospitality and at the time of the delegate’s decision a Bachelor of Business (Management) course. The delegate deliberately inferred the applicant would not complete this latter enrolment in a Bachelor degree. The delegate was correct. The delegate stated the value of this course was limited to the proposed extend of the applicant’s stay in 2020.

39. Since that time of the delegate’s decision the applicant has withdrawn from the Bachelor level course and enrolled in an Advanced Diploma commencing September 2018. The applicant did not provide any information to the Tribunal as to the reasons for withdrawal from the Bachelor’s course, the time of withdrawal from the Bachelor’s course and whether he was engaged in any study in the period March 2017 until the present time.

40. The applicant did not outline his reasons for enrolment in an Advance Diploma. He did not relate this enrolment to a future career, a particular enterprise or the possibility of opening his own restaurant. He did not provide any detail as to the course content. He did not outline how it might offer anything but marginal gain in terms of different or additional skills. He did not explain how it might result in higher remuneration or assist to obtain employment or improve his employment prospects in his home country.

41. The Tribunal is inclined to the view enrolment in the Advanced Diploma has limited utility to the applicant.

42. The Tribunal considers Cl. 13 and 14 of MD69 – the applicant’s immigration history.

43. Clause 13 makes it clear an applicant’s immigration history refers both to their visa and travel history.

44. The delegate made an adverse finding against the applicant in terms of his visa history and conditions attached to his visa. The delegate made a finding the applicant was in breach of condition 8516 (Maintain Eligibility) when he enrolled in VET courses at a non-eligible education provider. This was a serious breach and easily remedied or avoided.

45. The applicant did not avail himself of these easy options. The onus rests solely on the student visa holder to contact the department before taking any action to significantly change their circumstances (such as changing to non-eligible provider to study to VET courses) 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 advice of his circumstances or seek clarification on these matters.

46. It is also reasonable to have expected that if the applicant felt that unable to continue the higher education studies due to circumstances, the applicant have deferred any further studies and applied for an appropriate visa rather than remain in Australia in breach of a condition of his visa. The legislation relating to education in Australia for international students strongly supports students who require deferral from their studies due to compelling and compassionate circumstances. There is no evidence that the applicant availed himself of this option.

47. The applicant did not challenge this finding of the delegate. The applicant did not address this issue in his submission to the Department. The applicant did not address this issue in his s.359(2) response to the Tribunal. The applicant advised he has no military service commitments and is not aware of any political or civil unrest in India.

48. The applicant advised the Tribunal at the completion of his Advanced Diploma he intended to apply for a 485 temporary residency visa. He did not advise in which field he would seek work or relate the application to his past studies or intended studies. The Tribunal is of the view the applicant seeks to continue residency in Australia for the foreseeable future or at least until the latter part of 2021.

49. The applicant has been onshore since 2013. In that time he completed studies in the VET sector in Hospitality. The applicant advised the Tribunal he enrolled in a Bachelor degree that commenced in March 2017.Sometime after this enrolment he withdrew from this course. There is no evidence before the Tribunal the applicant has engaged in study since January 2017. The applicant has undertaken a series of short, inexpensive courses.  The applicant has been onshore for some time without successfully completing a qualification.

50. On the basis of the above, 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).

51. 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.

52. 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

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

    Mark Bishop
    Member