Singh (Migration)

[2018] AATA 3313

Singh (Migration) [2018] AATA 3313 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Talwinder Singh

CASE NUMBER:  1709353

HOME AFFAIRS REFERENCE(S):           BCC2017/983729

MEMBER:M. Jackson

DATE:23 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 August 2018 at 1:05pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant – Multiple courses at the vocational level – Enrolled in another Vocational course day before hearing – Able to study in Home County – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 12 April 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 13 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 temporarily in Australia.

4.    The applicant appeared before the Tribunal on 4 July 2018 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 applicant for entry and stay as a student who intends genuinely to stay in Australia temporarily.

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.

1. In reaching its decision, the Tribunal also considered the following documentary evidence:

   a.The delegate’s decision record;

   b.A statement regarding the applicant’s enrolment status and history;

   c.A Confirmation of Overseas Student Health Cover to 30 July 2019;

   d.The applicant’s record in the Provider Registration and International Student Management System (PRISMS);

   e.A Confirmation of Enrolment (COE) supplied by the applicant at the hearing for a Certificate IV in Commercial Cookery.

Background

1. The applicant is a 24 year old citizen of India who first came to Australia on a Student visa (TU573) on 26 January 2014 to study in the higher education sector. He was enrolled to study in a Diploma for Business and Commerce and a Bachelor of Business. He started the diploma course at Gold Coast TAFE but his education provider reported him on 27 July 2014 for failing to maintain satisfactory attendance. The applicant did not commence his Bachelor of Business, the principal course for which he was granted the visa. Instead over two years to March 2018 he completed five vocational courses in business fields at Certificate IV, Diploma and Advanced Diploma level. He did not study again prior to the 4 July 2018 hearing, but on 3 July, enrolled in a Certificate IV in Commercial Cookery.

2. In considering whether the applicant intends genuinely to stay in Australia temporarily and satisfies cl.500.212(a), the Tribunal has had regard to a number of specified factors in Direction 69.

3. The Tribunal has examined the value to the applicant’s future in his home country of India, his Australian qualifications, and considered his reasons for choosing to enrol in a Certificate IV in Commercial Cookery course, two qualification levels below his previous attainment and three levels below the course for which his original visa was granted.

4. At the hearing, the Tribunal, under section 359AA of the Act, referred the student to information about him held in the Provider Registration and Information Management System (PRISMS) and explained its relevance, in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision.

5. The Tribunal explained the information in the database, which captures a chronological record of the applicant’s academic history in Australia: his enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and the applicant was invited to comment on it. The Tribunal asked the applicant if he wished to seek further time to consider it. The applicant said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case.

6. The Tribunal questioned the applicant about his study path and his future plans and noted that he had applied for the Student (TU500) visa to study an Advanced Diploma in Leadership and Management and he had now completed that course. The Tribunal asked why he was subsequently choosing to study in commercial cookery.

7. The applicant said at the time he applied for the visa, after completing his Advanced Diploma of Business, he thought he would be comfortable progressing to higher education, but while he had enrolled in a Bachelor of Business in March 2015, he did not complete some of his assignments so felt he should change to commercial cookery, complete a Certificate IV course and go back to India.

8. The applicant said he had found he was not comfortable studying in the business field. The Tribunal said it had a concern about this, in that he had been studying in business related courses for some years. The Tribunal said cookery did not seem to be a reasonable divergence of field when he had arguably put himself in a position to articulate to Bachelor level, the level of study for which he initially came to Australia. The applicant said his motivation for studying cookery now was that his father owned a restaurant in India and he wanted to ‘give him a hand’. His plan was to work with his father in this restaurant in his home town and that after discussing his situation regarding Bachelor level study, he and his father had agreed he should stay on in Australia and gain some cookery skills.

9. The applicant claimed he was now learning a lot about cookery in Australia, particularly through his restaurant job, and his interest now lay in a cooking role in his father’s restaurant. The Tribunal said it had some concern about this plan, given he had several business qualifications from Australia, and questioned whether he might not use the qualifications he already had to assist at a management level in the restaurant. He said circumstances in India were a bit different from Australia; that his father was managing the restaurant and didn’t need a manager, so he had to do something special like cooking to help make the business better.

10. The Tribunal asked what type of food the restaurant served. The applicant said it was traditional Indian. The Tribunal asked why the applicant would study in Australia to learn traditional Indian cooking. He said he was working here in a restaurant making naans and curry and this was good experience for him. The Tribunal asked if this meant that he was learning where he worked, rather than where he was studying. The applicant responded that experience and study combined were valuable; there was relevant content in the cooking course and he would learn something he could not learn in India.

11. The Tribunal questioned the applicant about his study record, noting he had completed multiple courses at a vocational level in Australia, and was not proposing to use his existing business and management qualifications to secure his future in India. The Tribunal also noted he had completed the course for which he applied for the visa, so the Tribunal might be concerned that the applicant was now using the visa program to maintain residency in Australia. The applicant stated that when he applied for the visa he was not sure what he was going to do next, thinking he might go on to do higher education, but his mind had changed, he talked to his father and his father advised him to just spend some time in Australia to learn things about the restaurant business.

12. The Tribunal asked the applicant when he planned to go home and he said it would be after completing, “maybe next year”. There were no reasons not to go home; his circumstances in India were good, his father was former army and a former teacher, and furthermore his brother was sick and wasn’t working with him in the restaurant. The applicant said he had no family in Australia and that he was keen to return to India after completing his cookery certificate.

13. The Tribunal asked what effort the applicant had made to research and choose a cookery certificate and he stated that once he learned his father was opening a business, and had given him advice to continue studying, he found his restaurant employer also encouraged him to do cookery. He was happy with his chosen education provider who had supported this choice.

14. The Tribunal asked if the applicant had worked in Australia, and he said he had worked as a cleaner and in restaurants while here and had not applied for any other visas. The Tribunal noted that the delegate had found he had not adhered to the conditions of his initial Student (TU573) visa. The applicant claimed he was unaware at the time that he risked breaching his visa.

15. The Tribunal finds:

    a.The applicant has not pursued a progressive study pathway since arriving in Australia. He came here to study at Bachelor Degree level, which is Level 7 in the Australian Qualifications Framework (AQF), at did not do so, potentially breaching his visa conditions. He completed instead a series of short duration, relatively inexpensive courses in business and management at AQF levels 4, 5 and 6. These were a Certificate IV in Small Business Management, a Diploma of Management, an Advanced Diploma of Management, an Advanced Diploma of Business and an Advanced Diploma of Leadership and Management. This might be considered to be progressive, were it not for the overlap in disciplines; however the Tribunal finds differently: that the applicant, having after four years put himself in a position to articulate to higher education study chose not to do so, and is now effectively starting where he began, at Certificate IV level (AQF level 4), in the unrelated field of cookery because he wishes to remain in Australia.

    b.The Tribunal finds the claim by the applicant that he needs to study cookery in Australia in order to be capable of preparing traditional Indian food to be illogical.

    c.The Tribunal finds the applicant is not genuine in his claim that he is studying commercial cookery in Australia because he wishes to help his father’s business serving traditional Indian cookery in India. The Tribunal is mindful of his claim that he is learning about cookery by preparing naans and curries in an Indian restaurant here, and finds this is a more convincing argument than his claim that the cookery course was of significance to his future.

    d.The Tribunal finds the applicant has no intention of progressing to the higher education level for which he received his first Student visa, and nor does he have a plan to put the Diploma and Advanced Diploma qualifications he subsequently worked to acquire to use. The Tribunal notes the applicant completed, while on a Bridging visa, the course he applied for when he lodged his application for a Student TU500 visa in March 2017, and finds his sudden decision to undertake a cookery course to be unrelated to his intent when applying for the visa and to his entire course of study until now.

    e.The Tribunal finds that by repeatedly studying in short duration, relatively inexpensive courses in a number of fields, and without continuing to progress, the applicant is using the student visa program to extend his stay in Australia.

16. 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).

17. 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.

18. 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

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

Meredith Jackson
Member