Singh (Migration)

[2018] AATA 2992

Singh (Migration) [2018] AATA 2992 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabhveer Singh

CASE NUMBER:  1705591

DIBP REFERENCE(S):  BCC2016/1152948

MEMBER:Stephen Conwell

DATE:6 July 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 06 July 2018 at 9:59am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant genuinely intends to stay in Australia temporarily – Significant period of time spent not studying – Significant overlap in courses undertaken – Lack of academic progress – Limited value to future plans – Permanent residency visas actively pursued - Courses undertaken in order to secure a migration outcome – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2, cl 572.223(1)(a)

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 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 16 March 2016. The delegate decided to refuse to grant the visa on 16 March 2017. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of sub-classes: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the sub-class that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Sub-class 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Sub-class 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Sub-class 575); whether the applicant has the support of the relevant Minister (Sub-class 576); or whether the applicant has applied on the basis of being a Student Guardian (Sub-class 580).

3. The delegate refused to grant the visa because the first-named applicant (the ‘applicant’) did not satisfy the requirements of the “Genuine Temporary Entrant” (GTE) criterion which applies in each sub-class of the student visa.

4. The applicant appeared before the Tribunal on 16 March 2018 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

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

6. Where used in this decision:

   a.   COE refers to Certificate of Enrolment;

   b.   PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.   VET refers to Vocational Education and Training;

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

   e.   Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application;

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

   g.   IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sub-class 580

7. At Hearing, the applicant was informed that the Sub-class 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Sub-class 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Sub-class 580 visa.

8. The applicant confirmed that Form 157G was not used and a Sub-class 580 visa was not sought, and was informed that the application appeared not to be a valid application for that sub-class in any event, and the Tribunal so finds.

9. For the remainder of this decision, a reference to sub-classes or all sub-classes of the Class TU visa does not include a reference to Sub-class 580.

10. Having regard to the applicant’s current proposed course of study, the relevant sub-class in this case is Sub-class 572.

11. The issue in the present case is whether the applicant meets the time-of-decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)     The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)the Minister is satisfied that 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)…

12. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the Genuine Temporary Entrant criterion for Student 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.

13. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

14. At Hearing, the applicant was:

    a.given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the Tribunal Hearing;

    f.informed that all sub-classes of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those sub-classes.

15. The Tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Background

16. At Hearing, the applicant confirmed the following:

    ·he first arrived in Australia on a 573 student visa in 19 June 2013;

    ·he came to Australia after completing an Advanced Diploma of Information Technology (IT) in 2012 in the UK.

    s.359AA

17. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant information from the Provider Registration and International Student Management System known as PRISMS. The Tribunal explained:

    a.   that this information is relevant to the review because, when considered alongside all the other information before the Tribunal it could have reason to believe that the applicant was seeking to circumvent the ordinary migration program by using the Student visa program as a means to maintain ongoing residence in Australia;

    b. that if it relied on this information it may lead it to believe that he did not intend to stay in Australia temporarily, and did not meet cl.572.223(1)(a). If the Tribunal finds this to be the case, it would be the reason or a part of the reason for affirming the decision that is under review.

18. The applicant was informed that he could comment or otherwise respond to the information or that he may seek additional time to comment or respond to the information.

19. The applicant confirmed that he understood the relevance of this information to the process. He requested, and was granted, a few minutes time to consider the PRISMS information and discuss it with his representative; the Hearing proceeded after this short interval.

    Study History

20. Prior to the Hearing the applicant submitted to the Tribunal a GTE Statement, and a Submission by his representative, both commenting on and explaining his study history as follows:

    ·       Diploma of Hospitality          15/07/2017 14/01/2018   Cancelled

    ·       Diploma of Hospitality Management     15/04/2017 06/10/2017             Cancelled 

    ·       Certificate IV in Commercial Cookery 27/02/2017 27/03/2017              Completed   

    ·       Diploma of Hospitality          15/02/2017 14/08/2017   Cancelled

    ·       Certificate IV in Commercial Cookery 15/01/2017 14/07/2017              Cancelled   

    ·       Certificate IV in Commercial Cookery 15/08/2016 14/02/2017             Completed   

    ·       Bachelor of Business  14/03/2016 31/12/2017   Cancelled 

    ·       Certificate III in Commercial Cookery 19/01/2016 14/01/2017              Completed   

    ·       Bachelor of Business (Prof. Accounting)  02/11/2015 26/10/2018         Cancelled  

    ·       Diploma of Hospitality          26/10/2015 17/02/2016   Cancelled

    ·       Diploma of Hospitality          13/07/2015 10/01/2016   Cancelled  

    ·       Certificate IV in Commercial Cookery  16/03/2015 14/10/2015             Cancelled  

    ·       Certificate IV in Hospitality     12/01/2015 12/07/2015   Cancelled  

    ·       Bachelor of Information Technology 07/07/2014 30/06/2016                Cancelled  

    ·       Certificate III in Commercial Cookery 12/05/2014 04/03/2015             Cancelled  

    ·       Certificate III in Hospitality     13/01/2014 11/01/2015   Cancelled  

    ·       Diploma of Computing         25/06/2013 06/06/2014   Cancelled  

21. In January 2015 the Department cancelled the applicant’s visa under s.116(1)(b) on the basis that the applicant had breached condition 8516 which attached to his visa, since his transfer to the VET sector meant that he no longer satisfied the requirements of his 573 Student visa.  As a consequence of the visa cancellation the applicant lost his study rights between January – July 2015.

22. The applicant applied for a merits review before the Tribunal.  By decision of 27 July 2015 the Tribunal, differently constituted, set aside the cancellation and reinstated the applicant’s 573 visa. The applicant then applied for a sub-class 572 visa to study hospitality in the VET sector however this application was refused by the Department on 16 March 2017, which is the subject of this merits review.

23. In refusing the application for a 572 visa, the Department found that since arriving in Australia the applicant had cause to cancel several COEs between 19 June 2013 and 19 January 2016 and hence did not complete any courses during this period – a total of 2 years and 7 months.  The delegate also expressed concern that applicant’s 2017 enrolments in Certificates IV in Commercial Cookery and Diploma of Hospitality Management seem very similar to his previous studies in Certificate for in Commercial cookery which she completed in February 2017.

24. The applicant’s evidence both oral and in supporting statements, was that the migration agent who advised him during his early years in Australia had given him poor and incorrect advice  concerning the study rights and obligations attaching to his visa status. By following the advice the applicant claims he fell into breach of condition 8516, which resulted in his visa cancellation. In its July 2015 decision to set aside the visa cancellation, the Tribunal (differently constituted) agreed that the applicant had received erroneous advice from his migration agent and found in favour of the applicant, setting aside the cancellation decision and substituting a decision not to cancel the applicant’s Student 573 visa.

25. On the evidence before it, the Tribunal accepts that the applicant had received misleading and incorrect migration advice and his acting upon such advice led him to breach his condition 8516 visa obligations.  The Tribunal also accepts that upon his visa been cancelled the applicant lost his study rights and was therefore unable to enrol in study for seven months from 16 January to 17 July 2015.  In its written submission the applicant’s migration agent states that as a result of the visa cancellation all of the applicant’s future enrolments were then cancelled.

26. The Tribunal accepts the findings in its July 2015 decision (differently constituted) that the incorrect advice of the applicant’s migration agent (at the time) played a pivotal role in the applicant’s course selection which ultimately resulted in him breaching condition 8516. The Tribunal proposes therefore to turn its attention to the other factors pertaining to the “genuine temporary entrant” criterion in cl. 572.223, including having regard to the factors in Direction 53.

27. The applicant arrived in Australia on 19 June 2013 to study IT, having already attained a Advanced Diploma in IT in the UK in 2012.  The applicant’s evidence is that after just a few months study in Australia he determined that IT “was not [his] area and did not interest [him].

28. At Hearing the Tribunal put to the applicant that his marks in the Advanced Diploma in IT, completed in the UK, show that he has an aptitude in this field: his academic transcript shows that of the seven modules studied he achieved a B mark in three of them, an A in two of them and Distinctions in the remaining two modules. The Tribunal questioned the sincerity of this change of heart particularly since the applicant’s academic transcripts from the UK show him to be an excellent student in the field of IT,

29. The Tribunal invited the applicant to explain how someone who with obvious skills and potential in the IT field, having successfully completed advanced diploma studies in IT overseas can, within five months of coming to Australia to continue his studies in that field, claim to have a sudden and genuine epiphany that his life’s ‘calling’ in fact, lies in hospitality.  Nevertheless that is what the applicant urges the Tribunal to accept.  In response to the Tribunal’s questions, the applicant denied that his change of career was influenced by Australia’s migration law and visa programs.

30. The Tribunal is not persuaded by the applicant’s contention that despite his obvious aptitude for IT, his true calling lies in hospitality; the Tribunal therefore gives little weight to the applicant’s evidence in this regard. In spite of the applicant’s assertions to the contrary, the Tribunal finds that his decision to transfer from higher education studies (for which he had secured entry into Australia), to VET hospitality studies, was made not for the purpose of academic progress, but instead was influenced by Australia’s migration laws and visa considerations.

31. The Tribunal is not satisfied that the applicant’s study history shows the academic progress of a genuine student with a genuine intention to reside temporarily in Australia.

    Value of Course to Applicant’s Future

32. The applicant agreed at Hearing that in light of his change to hospitality, that little value ought to be given to his skills and qualifications in IT. Since the applicant has obtained such excellent marks in his advanced diploma studies in the UK, Tribunal finds that this is an extraordinary position for the applicant to take, however the applicant may feel compelled to adopt such a posture as a logical consequence of his submission that his decision to switch from IT to hospitality is motivated by a genuine change of heart.

33. Whilst a change of career – even a radical change – is possible at any stage in a person’s life, and indeed Direction 53 takes into account reasonable changes to career plans, the Tribunal finds that that the most probable and credible explanation of the applicant’s abrupt change of study courses, 5 months after his arrival in Australia, is that it was motivated by migration and visa considerations, rather than because the applicant had a genuine ‘change of heart’ regarding his career.

34. Overall the Tribunal considers that if that applicant intends to stay in Australia temporarily he would not have been so quick to dismiss the IT area of study he had invested in. This is particularly so, given his obvious aptitude for it, as well as the growing employment opportunities in that sector, particularly in his home country of India, but also globally.  For these reasons the Tribunal is not satisfied that his hospitality studies hold distinct value to the applicant’s future outside Australia.

    Applicant’s Future plan

35. Whilst his hospitality studies align with the applicant’s stated career plan the Tribunal is not persuaded that the stated intention of becoming a restauranteur back in his home country is a genuinely held career ambition. On the evidence before it, the Tribunal finds that the applicant’s claimed career goals are tailored to fit with his current, or then current migration aspirations.

36. Whilst the applicant’s evidence does mention his stated plan “to return home and run my restaurant”, and that he would enlist family help and financial support to implement this plan, there is no evidence that the applicant has put much thought into implementing such a plan. In his evidence before the Tribunal (differently constituted) in July 2015 regarding his visa cancellation, the applicant stated that his interest in restaurants grew out of his work experience in the UK and in Australia, however no evidence of this hospitality work was submitted. In his oral evidence at Hearing, the applicant stated that although he was not currently working, he previously worked part-time as a taxi driver for 2 years.  Whilst not necessarily contradicting the applicant’s stated ambition to become a restauranteur, the Tribunal does query why someone who claims to have hospitality experience both in the UK and here in Australia, and who professes a desire to become a restauranteur, would not actively pursue part-time work in the hospitality sector for the purpose of acquiring as much experience as possible whilst continuing his studies in the field.

37. The Tribunal therefore gives little weight to the applicant’s evidence that his future plan is to pursue a career in hospitality outside of Australia.  The Tribunal is not persuaded that the applicant’s stated future plan is a well-developed or genuinely-held career goal.

    Ties to India

38. The applicant submits that he has strong ties to India, as his parents live there and have an automotive dealership. He stated that he also has a girlfriend in India and they have plans to marry.  The applicant also gave evidence that his brother lives in Canada and has permanent residency; furthermore his parents have applied for “Green Card” entry into Canada.

39. The Tribunal accepts that the applicant has family ties in India however his own evidence suggests that this is something that would change should his parents be allowed to migrate to Canada to join his brother. The Tribunal gives weight to the applicant’s family situation and his evidence that his parents have applied to migrate to Canada to join his brother. This suggests to the Tribunal that the applicant is seeking to emulate his brother and acquire permanent residency outside of India.

1. The applicant confirmed that there were no adverse reasons pertaining to the following factors indicated by Direction 53 that would prevent him from returning to India and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, economic or political circumstances in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, the applicant’s circumstances in the home country relative to others in that country.

   Circumstances in Australia

2. At Hearing the applicant stated that he has no family in Australia or any other close social or community ties, however he does have a few school friends from India who now reside in Australia and hold Australian citizenship. The Tribunal accepts this as evidence however it also notes that the applicant is a single male who has already successfully lived and studied abroad immediately before coming to Australia   He also has the example of his brother successfully emigrating to Canada and acquiring permanent residency. Whilst each of these facts are not, in themselves conclusive,  they cumulatively persuade the Tribunal that the applicant does not harbour a genuine intention to return to India upon completion of his current enrolled studies. 

3. The Tribunal is not persuaded by the applicant’s stated intention to return home without delay, to work in hospitality, upon completion of his current studies. The Tribunal finds that the applicant has established a working lifestyle in Australia; he is unmarried and submitted no evidence of owning property back in India.  Furthermore his parents whilst currently residing in India, have sought to emigrate to Canada to join his brother there. This suggests to the Tribunal that since his entry into Australia, the applicant, is and has been, focussed on emigration outcomes, rather than on his stated career or business goals.

4. In weighing up the evidence before it, the Tribunal finds that the applicant is using the Student visa program not as a genuine student intending to progress academically, but in order to maintain residency in Australia. Although the Tribunal accepts that that applicant has a financially comfortable family background in India, the Tribunal finds that the economic disparities between Australia and India are such that the applicant has compelling economic and lifestyle reasons to seek to remain in Australia indefinitely.

5. Consequently the Tribunal finds that the applicant has sufficiently strong incentives to remain in Australia indefinitely and that he is using the Student visa program to maintain residence in Australia.

   Immigration history

6. At Hearing, the applicant’s representative advised the Tribunal that the applicant he has applied for permanent migration via the Regional Sponsorship scheme (sub-class 187). The Tribunal finds such an application to be at odds with the applicant’s claim to intend a temporary stay in Australia. In seeking to explain the apparent contradiction the applicant suggested that he applied for regional sponsorship “almost on a whim” and that he rejected at the first stage by a Regional Certifying Body (RCB). The applicant claims that he had simply applied for the 187 visa however he wasn’t concerned about the outcome as his genuine intentions still lay in pursuing his study goals and then quitting Australia in order to pursue his career goals overseas. Following the Hearing the applicant submitted a Statutory Declaration offering to withdraw his second 187 visa application if “it is impacting my student Visa application.”

7. The Tribunal does not accept the applicant’s explanation concerning his lack of concern for his 187 visa application. On his own evidence, the applicant confirmed that upon his 187 visa application being rejected by a RCB, he subsequently submitted a second application.  His actions in doing so, suggest to the Tribunal that the applicant has a firm intention to pursue avenues of permanent residency. The Tribunal finds that the applicant’s Statutory Declaration is a belated attempt to deflect any adverse consequences that he believes his 187 visa application may have on the merits review of his Student visa application

8. It follows that 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 efforts to seek permanent residency in Australia, shows the applicant to be, 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 avenues for permanent residency. 

   Findings

9. Overall, the Tribunal is not satisfied that the applicant intends to cease his residence in Australia as claimed.  Rather, for the reasons above, the Tribunal finds that if given the opportunity, the applicant will continue to seek to prolong his stay in Australia indefinitely, whilst he pursues other avenues for permanent residency

10. On the basis of the above, and having regard to Direction 53 and having considered the applicant’s circumstances, immigration history, and 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.572.223(1)(a).

11. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Sub-class 580, the other sub-classes within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these sub-classes. In respect of Sub-class 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that sub-class. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Stephen Conwell
    Member